Copyright and Convergence: A Different Perspective

26 Pages Posted: 16 Dec 2007

See all articles by David McGowan

David McGowan

University of San Diego School of Law

Date Written: December 12, 2007

Abstract

This paper argues that Feist Publications, Inc. v. Rural Telephone Service Company, Inc., did not eradicate cost recovery as a theory of copyright protection. Notwithstanding the Court's condemnation of the sweat of the brow theory of protection, courts continue to grant protection to persons with whom expression originates. Courts typically do so by holding that the creativity Feist supposedly requires for copyright protection inheres in choices the court identifies as necessary to create the expression.

This point is familiar to anyone who has read cases extending protection to price lists for used cars or antique coins. I argue the point can also be seen in cases involving the filming of spontaneous news events, such as the Zapruder tape, George Holliday's filming of the beating of Rodney King, or the L.A. News Service's filming of the beating of Reginald Denny. One can identify choices made in such cases - the choice to focus for clarity rather than to achieve a distorted image, for example, or the choice of when to stop filming - but these choices do not reflect creativity in any meaningful sense. The price list and spontaneous news cases can be compared to part number cases, in which courts generally deny protection and disregard choices (such as the number of digits in the number) firms claim as reflecting creativity.

I argue that all three types of cases are, for the most part, correctly decided, but that they cannot be distinguished by the concept of choice alone. The key is instead the relationship between the extension of rights and the desirability of variation or the need for cost recovery. To extend rights is to discourage copying and thus encourage greater variation of expression. Where the utility of expression relates inversely to variation, as with names, society is better off denying expression, so long as doing so does not squelch expression by eliminating the need for cost recovery. Where variation increases utility, protection is desirable.

I also distinguish these arguments from the debate between property rules and liability rules. That debate ultimately turns on the socially optimal method of pricing where cost recovery is needed, not on the desirability of variation as such. Unless there is strong reason to believe that incentives are necessary to cover the costs of expression, given the disadvantages of judicial pricing, the only obvious case where a liability rule would be preferable to a property rule - where variation is undesirable - is also a case where no liability at all would be preferable to a property rule.

Keywords: intellectual property, copyright

JEL Classification: K00, K1, K10

Suggested Citation

McGowan, David, Copyright and Convergence: A Different Perspective (December 12, 2007). San Diego Legal Studies Paper No. 07-127. Available at SSRN: https://ssrn.com/abstract=1071902 or http://dx.doi.org/10.2139/ssrn.1071902

David McGowan (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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