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Journal of Intellectual Property Law

Abstract

Copyright is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration received by authors is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited basis for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all, it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season of exclusivity, if anything. Works that are not original and do not demonstrate a modicum of creativity would not qualify asconsideration and receive no exclusivity in return. And, in some cases, an author - say one writing a book that will be a guaranteed best seller - could be required to pay a considerable amount of the right to exclusivity that makes those earnings possible. By necessity the contract in question is a form contract which, unlike other forms, is drafted to the disadvantage of the drafter.

This Article tracks the similarities of copyright law and contract law and suggests that viewing copyright as basically contractual would result in a much more rational system of copyright law. Specific proposals include 1) incentives for greater formality; 2) distinguishing copyright dependent works from those that are not; 3) sanctions for the false claims of copyright; and 4) the use of a liability rule as opposed to a property rule in instances of infringement.

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