Comments on: Sensible Copyright Policy vs. The First & Fifth Amendment? http://www.concurringopinions.com/archives/2007/08/sensible_copyri.html The Law, the Universe, and Everything Sun, 22 Nov 2009 14:10:41 -0700 http://wordpress.org/?v=2.8.3 hourly 1 By: TJ http://www.concurringopinions.com/archives/2007/08/sensible_copyri.html/comment-page-1#comment-52840 TJ Fri, 10 Aug 2007 04:11:45 +0000 http://www.solove.org/archives/2007/08/sensible-copyright-policy-vs-the-first-fifth-amendment.html#comment-52840 I admit to not having read the article (the link seems to be not working), but the thesis is not obvious to me. Yes, the Vatican will not need copyright protection for it to produce communications. But the entities that have external incentives to create works seem to have a strong overlap with the entities that get very little incentive from copyright protection and impose very little cost. The Vatican will presumably be happy for others to copy and distribute its work. To the extent that such authors seek copyright protection for non-economic reasons--i.e. to control criticism--that is precisely what the fair use doctrine is about, though I admit the uncertainty in fair use doctrine undermines this somewhat. The point I am getting at is that I do not see a strong need to remove this category of authors who have incentive to create works; because the same incentive that creates the work also propels those authors to waive their copyright protection to distribute the work. Only if copyright protection is asserted is it costly. It is not immediately clear to me that there is a category of work where there is a non-copyright incentive to create but no incentive to distribute. I admit to not having read the article (the link seems to be not working), but the thesis is not obvious to me. Yes, the Vatican will not need copyright protection for it to produce communications. But the entities that have external incentives to create works seem to have a strong overlap with the entities that get very little incentive from copyright protection and impose very little cost. The Vatican will presumably be happy for others to copy and distribute its work. To the extent that such authors seek copyright protection for non-economic reasons–i.e. to control criticism–that is precisely what the fair use doctrine is about, though I admit the uncertainty in fair use doctrine undermines this somewhat.

The point I am getting at is that I do not see a strong need to remove this category of authors who have incentive to create works; because the same incentive that creates the work also propels those authors to waive their copyright protection to distribute the work. Only if copyright protection is asserted is it costly. It is not immediately clear to me that there is a category of work where there is a non-copyright incentive to create but no incentive to distribute.

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