Title: The Hidden Transactional Wisdom of Media Discrimination in Pre-AWCPA Copyright
Abstract: Intellectual property is most commonly viewed as a legal tool for generating incentives to create information-intensive goods, and debates over its justification usually center on the incentives/access tradeoff. However, a persistent counterargument in intellectual property scholarship is that something resembling today’s intellectual property can alternatively be justified on the basis of its ability to resolve Arrow’s information paradox and facilitate the transfer of information in bargained-for exchanges. This Article reveals a fundamental, and to-date unnoticed, conceptual flaw in this counterargument: the information paradox can only justify economically defeasible rights, e.g., rights that lose their economic value upon the public accessibility of a commercialized product, licensed by the information possessor, from which the information can be reverse engineered. Economically defeasible intellectual property presents a viable form of limited intellectual property in contexts in which little to no intellectual property is needed to ensure sufficient incentives to create information-intensive goods and full-term intellectual property rights are therefore not advisable under the incentives/access tradeoff.This article also presents a case study of an economically defeasible right: the copyright protection for architecture that was available before the Architectural Works Copyright Protection Act (AWCPA) of 1990. Under incentive-to-create theory, pre-AWCPA copyright is widely viewed as an odd copyright regime that lacks a solid justification because it protected original expression embodied in drawings but not the exact same original expression embodied in constructed buildings. Understanding pre-AWCPA copyright as a tailored right for resolving the information paradox reveals its hidden wisdom. The oddity of pre-AWCPA copyright is precisely its economically defeasible nature: the public could make “measured drawings” of buildings — i.e., reverse engineer them — without infringing copyright. Pre-AWCPA copyright provides just enough protection to resolve the information paradox, but no more, and it therefore minimizes the costs of intellectual property’s access restrictions in a field in which copyright-induced incentives are arguably not needed to foster the production of expressive works.
Publication Year: 2020
Publication Date: 2020-01-01
Language: en
Type: article
Access and Citation
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot