Michael Abramowicz · September 2011
79 GEO. WASH. L. REV. 1644 (2011)
Until recently, virtually no attention has been paid to the possibility that copyright protection might inefficiently draw resources into creation and dissemination of copyrightable works. The empirical challenge that Justice Breyer observed in The Uneasy Case for Copyright assessing to what other uses creators might put their time presumably explains both why the issue did not draw more extended treatment in Justice Breyer’s paper and why it did not quickly emerge as important in the literature. Yet it is not necessary to conduct a full study of alternative career paths to obtain some traction on the issue of whether excessive resources are devoted to producing copyrighted works. One can simplify by assuming that resources, if not so devoted, would earn normal returns elsewhere in the economy, and then focus on a different question: what benefit does society obtain from marginal copyrightable works, those that might not be created if copyright incentives were slightly less robust? If those benefits are considerably larger than normal investment returns, then the incentives-access paradigm should be largely undisturbed, but if they are considerably smaller, then the incentives-access framework must be reconsidered.
The economics of product differentiation may serve as a basis for complicating the traditional incentives-access paradigm. According to the economics of product differentiation, a consumer’s choice of whether and what to consume depends on how far apart available works are from the consumer’s ideal point in product space and the prices at which these works are sold. This Article applies the economics of product differentiation to copyright laws. The reason for this application is simple: copyrighted works are not wholly interchangeable with one another yet they can often substitute for one another. The degree of substitutability of any two works depends on the particular works. The extent to which one copyrighted work can substitute for another depends on many characteristics of the works, including quality. As tribute to Justice Breyer’s The Uneasy Case for Copyright, this Article seeks to assess a wide range of copyright doctrines to determine how well they accord with insights learned from the economic literature on product differentiation.
