Wigmorian Copyright: Law, Economics, and Socio-Cultural Evolution

Abstract

The scope of copyright protection has been extended throughout the centuries. While it initially did not cover much more than printed books, it now comprises a large variety of different works and regulates innumerable marketplaces for creative products. At the same time, theory has made enormous leaps, from an initial understanding of copyright as a static and individual natural-law entitlement to today’s more economic conception. Yet one thing has remained unchanged: no matter what the product or marketplace at issue, the law still offers a virtually uniform level of rights protection for all scenarios. Such monolithic invariance is the root of many problems, since today’s marketplaces for creative products are anything but homogeneous with respect to the correlation between rights extension and creative activities. So far, much of the discussion has focused on how to modify substantivelaw copyright doctrine. This perspective overlooks the impact and importance of court adjudication. A more process-oriented and evolutionary view would help conceive of a better, more comprehensive and context-sensitive model of copyright. Indeed, it is the process and method of practical lawmaking rather than the statutory fine-tuning of substantive law policies that is the most significant determinant of the evolution of copyright law “in action.” This study proposes a more evolutionary approach to copyright theory and, accordingly, a number of modifications to current doctrine in order to create a more context-sensitive, flexible, and economically sound copyright law.