Does Copyright Law Promote Creativity? an Empirical Analysis of Copyright's Bounty

Article excerpt

Modern copyright law is based upon a theory: increase copyright protection and you increase the number of creative works available to society. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. And with this expansion, we are told that the costs associated with copyright are worthwhile because of the bounty it produces. What if this theory could be tested? After all, this is not a question of faith or morality, nor is it a statement on how humans should behave; it is a theory about how humans do behave. In this Article, we use statistical analysis to test the theory that increasing copyright protection usually increases the number of new creative works. Relying upon U.S. copyright registrations from 1870 through 2006 as a proxy for the number of works created, we consider how four variables - population, the economy, legal changes, and technology - influenced subsequent copyright registrations. Our findings cast serious doubt on the idea that with copyright law, one size fits all. While individual legal changes may be associated with changes in subsequent copyright registrations, the overall relationship between changes in copyright law and registrations is neither consistent nor completely predictable.

I. INTRODUCTION

In 1841, Thomas Babington Macaulay delivered a speech in the British Parliament in which he famously described copyright as "a tax on readers for the purpose of giving a bounty to writers."1 While critics of copyright law often use this quote as a general objection to copyright, that was not the intent. Macaulay was not opposed to copyright per se. Instead, he was skeptical that a proposal to increase the length of copyright protection would yield much in return. Following this famous quote, Macaulay went on to say:

I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my hon[orable] and learned [f]riend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.2

As such, the problem was not copyright itself, nor even the monopoly costs associated with copyright, which he described in that same speech as a necessary evil.3 The problem was that changing copyright law and expanding copyright's exclusive rights might not provide the public with any real benefit. While Macaulay was successful in defeating the 1841 effort to expand copyright,4 more often than not, lawmakers have not shared his skepticism.5

In the United States, the history of copyright law is one of expansion. For example, in 1790, copyright originally provided authors the exclusive right to vend books and maps for fourteen years with an additional fourteen years of protection available through renewal.6 Currently, copyright protects all original expression fixed in a tangible medium of expression, which includes books, motion pictures, sound recordings, broadcasts of sporting events, and video games.7 It provides authors the exclusive right to control almost all uses of their writings - even the ability to create new works based upon the original.8 Moreover, this protection generally lasts for the life of the author plus an additional seventy years.9

The logic behind this expansion is straightforward. Copyright law provides authors with exclusive rights in their works.10 In turn, these exclusive rights allow successful authors to obtain financial reward for their works by creating a market for them instead of forcing them to seek private or government patronage. The greater the protection, the greater the reward; the greater the reward, the greater the incentive to create new works; and the greater the incentive to create new works, the greater the number of new works created. …