Abstract

http://ssrn.com/abstract=354420
 
 

Citations (1)



 
 

Footnotes (117)



 


 



Copyright Law as a Silencing Restriction on Non-Infringing Materials - Unveiling the Real Scope of Copyright's Diversity Externalities


Guy Pessach


Hebrew University of Jerusalem - Faculty of Law; Yale University Law School - Affiliate Fellow, Information Society Project


Yale Law & Economics Research Paper No. 268

Abstract:     
The main argument presented in this Article is that the harms and social costs of copyright cannot be summarized just in terms of enclosure and exclusion. Copyright law, I will argue, also has a silencing effect toward noninfringing creative materials of other independent creators and producers.

Recent scholarly work has emphasized copyright's "dynamic effect," that is, the ongoing influence of expansive copyright protection toward an enclosure of the creative commons, and diminishment of cultural diversity. On the whole, however, this broad approach regarding the social cost of copyright in terms of diversity has focused only on instances and frameworks of creative activity in which a secondary author wishes to make use of existing copyrighted material, while a copyright owner (often a media conglomerate) imposes obstacles and limitations against such a use.

The argument presented in this Article goes one step further in exploring the nexus of copyright and diversity. As I will show, an expanded copyright regime diminishes diversity in a more intrusive manner. Extensive copyright protection also has a chilling effect on the variety and diversity of creative works that are both noninfringing and not affiliated to copyright portfolios, or to the communicative activity, of commercialized corporate media. This outcome derives from the leverage extensive copyright protection affords to excessive exposure of corporate media's creative materials, as well as to the economic and cultural dominance of these media products.

This Article demonstrates how the unique characteristics of media products, as public and solidarity goods, together with the advantages that extensive copyright protection grants large-scale corporate media, prevent alternative, noninfringing creative materials from reaching effective audience attention and competing equally for the public's attention and cultural preferences. Extensive copyright protection does so, first, by enabling commercialized media to deepen their market dominance and the cultural centrality of their products through ancillary and derivative markets, and second, by producing a "solidarity value" for the commercialized and commodified nature of media products. As this Article demonstrates, it is in this sense that extensive copyright protection has an undesirable silencing effect on noninfringing creative materials, and further diminishes diversity by inducing a wasteful competition among corporate media's relatively homogeneous products.

Number of Pages in PDF File: 39

Accepted Paper Series





Download This Paper

Date posted: September 15, 2003  

Suggested Citation

Pessach, Guy, Copyright Law as a Silencing Restriction on Non-Infringing Materials - Unveiling the Real Scope of Copyright's Diversity Externalities. Southern California Law Review, Vol. 76. Available at SSRN: http://ssrn.com/abstract=354420 or http://dx.doi.org/10.2139/ssrn.354420

Contact Information

Guy Pessach (Contact Author)
Hebrew University of Jerusalem - Faculty of Law ( email )
Mount Scopus, 91905
Israel

Yale University Law School - Affiliate Fellow, Information Society Project ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
Feedback to SSRN


Paper statistics
Abstract Views: 2,960
Downloads: 232
Download Rank: 78,399
Citations:  1
Footnotes:  117

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.313 seconds