Copyright without Creators

Abstract

Copyright is typically justified by the rationale that profits induce authors and other artists to invest in cultural production. This rationale is vulnerable to the objection that some artists have intrinsic production incentives and do not require significant capital. Even accepting this objection, copyright is justified by an alternative rationale: it principally supports the profit-motivated intermediaries that bear the high costs and risks involved in evaluating, distributing and marketing content in mass-cultural markets. This “authorless” rationale is consistent with the intermediated structure of mass-cultural markets and accounts for long-standing features of copyright law that have conventionally been dismissed as unjustified transfers from consumers to media interests. The digital transformation of mass-cultural markets, in which content is abundant but quality is variable, challenges and clarifies the intermediary-based rationale for copyright. Even in digitized content markets, robust copyright enables intermediaries to select from the full range of transactional structures for most efficiently bearing the costs and risks of screening, packaging, distributing and marketing content. Weak or zero copyright skews the market’s selection of organizational forms by compelling the use of intermediation structures that bundle unprotected content with excludable complementary goods. Preliminary evidence from the popular music market suggests that the effective decline in copyright protection may have distorted the efficient selection of intermediation mechanisms.