Copyright As Contract

– Jeffrey L. Harrison

Should copyright law incorporate contract principles to better serve the public’s interest? Copyright laws exist to serve both authors and those who will benefit from their works, which essentially makes them contracts on a general level. However, copyright law is missing a key element contained in contract law: a bargain. This lack of reciprocity indicates that copyright protection does not drive creative efforts. This Article proposes a contract model be adopted, and that the standard remedy should be damages only. In order to best serve all parties, copyright infringements and copyrighting of unoriginal or unqualified works should be treated as a breach of contract, rather than just violation of a copyright law so that damages can be evaluated on a case-specific basis rather than statutorily as they are currently. The Article goes on to compare and contrast the current property rule with a more favored liability rule to avoid higher transactions costs. Ultimately, this Article states that the property rule imposes more uncertainty-based barriers to bargaining than the liability rule, and that the current remedial regime merely adds to the costs of contracting. Therefore, the author proposes that legitimate copyright interest be protected by a liability rule rather than the property rule to lower social costs to the public. In an era of creative advancement, reevaluation of how creative works are protected is necessary. To date, IP rights are structured as property rules, which has resulted in higher transaction costs and reduces efficiencies.

Christopher Buccafusco et. al, The Nature of Sequential Innovation, 59 WM. & MARY L. REV. 1, 30 (2017).

Abstract Written by Kathryn E. Sheppard, 2018