US Public Affairs - 30/09/08

Ginsburg on Orphan Works

"This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US proposals to enhance their international compatibility and to reconcile the interests of users more fully with those of the works' creators." [Isolum]

Considering the Risk Dimension in the Administration of Copyright
"In the law and economics literature of copyright, the economic function of collecting societies has been principally treated as a way to diminish transaction costs. However, another possible function, the transfer of risk as a function of collective administration has been, relatively, ignored. Through risk analysis, an author will be able to determine which method of administration of protected rights is most beneficial to him. Due to information asymmetries, authors and users bear a number of risks. These risks can be transferred to a collecting society which is in a better position to bear them more efficiently and to better administer the protected rights." [SSRN]

Is the Copyright Monopoly a Best-Selling Fiction?

"This paper attempts to determine the impact of copyright on the prices of books, which is a task that has not, to my knowledge, been undertaken before. Recent prices of best-sellers written between 1895 and 1940, some with copyright and some without, are compared. One set of empirical findings based on typical regressions indicate that the prices of copyrighted works do not appear higher than the prices of non-copyrighted works. Another set of findings, based upon giving greater weights to books that have greater unit sales, implies that copyright raises price by up to 14.5%. This bifurcated result allows the contemplation of two scenarios. In the first, copyright does not raise price at all. This is explained by appealing to the nascent literature on uniform pricing. If books are best described by this model I show that increases in copyright unambiguously increase welfare. The increased-price scenario notes that authors appear to receive all the industry rents and examines the possible deadweight losses due to the higher price of copyrighted books. I calculate a range of deadweight losses based upon seemingly reasonable market assumptions and find the size of the deadweight loss is small compared to industry revenue. Importantly, the size of this deadweight loss appears to be much less than the deadweight losses from a leading alternative system that has been proposed for distributing creative works." [SSRN]

Restricting Access to Books on the Internet: Some Unanticipated Effects of US Copyright Legislation
"One manifestation of the trend towards the strengthening of copyright protection that has been noticeable during the past two decades is the secular extension of the potential duration during which access to copyrightable materials remains legally restricted. Those restrictions carry clear implications for the current and prospective costs to readers seeking "on-line" availability of the affected content in digital form, via the Internet. This paper undertakes to quantify one aspect of these developments by providing readily understandable measures of the restrictive consequences of the successive modifications that were made in U.S. copyright laws during the second half of the twentieth century. Specifically, we present estimates of the past, present and future number of copyrighted books belonging to different publication-date "cohorts" whose entry into the public domain (and consequent accessibility in scanned on-line form) will thereby have been postponed. In some instances these deferrals of access due to legislative extensions of the duration of copyright protection are found to reach surprisingly far into the future, and to arise from the effects of interactions among the successive changes in the law that generally have gone unnoticed." [SSRN]

The Social Contract and Authorship: Allocating Entitlements in the Copyright System
"Political and moral philosophy teach that there are norms governing how individuals and states ought to behave to ensure a well functioning society. This paper argues that authorship is essentially an activity that can only occur when other individuals in society are constrained by particular moral and ethical norms, and when the copyright system is built on a theoretical framework where individuals in society agree to waive certain rights in order that authors may have the incentive to produce literary and artistic works. The law as it presently stands allocates entitlements without ethical or moral restraints on the exercise of private individual rights. Considerations of fairness and justice ought to be serious considerations in deciding how entitlements in literary and artistic works are allocated, and this paper utilizes theories of moral and political philosophy as a normative model for how individual rights ought to be exercised. This paper concludes that the allocation of entitlements in literary and artistic works ought to be in accordance with the mutual agreement individuals in society enter to provide rewards to authors, and prescribes certain ethical and moral norms that ought to be incorporated into the copyright system to fulfill this agreement." [SSRN]