Contracting around Copyright: The Uneasy Case of Unbundling of Rights in Creative Works
Guy A. Rub
Ohio State University (OSU) - Michael E. Moritz College of Law
October 20, 2008
University of Chicago Law Review, Vol. 78, No. 257, 2011
The Copyright Act grants authors and users a set of entitlements in copyrightable works. It is questionable whether and to what extent authors and users can reallocate these rights by entering into legally enforceable contracts. The Seventh Circuit’s historic decision in ProCD, Inc v Zeidenberg, which held that contracts are usually not preempted by the Copyright Act, produced an extensive debate in the copyright literature regarding the enforceability and desirability of such contracts. Many participants in this debate, both supporters and critics of the court’s holding, assume that the ProCD rule enhances economic efficiency by allowing authors to unbundle the set of rights prescribed by the Copyright Act.
In this Article, I claim that, from an economic efficiency perspective, it is difficult to defend the ProCD rule. I argue that the prevailing belief that this rule reduces the wasteful deadweight loss associated with copyright is oversimplified and inaccurate. A more persuasive argument is that the ProCD rule increases the incentive to create in the long run. Such an efficient outcome, however, is desirable only when it allows society to mitigate the harm caused by other damaging components of the copyright system, and this was not achieved by the ProCD decision.
Number of Pages in PDF File: 23
Keywords: copyright, intellectual property, contracts, price discrimination, licensing, libraries. pricing, ProCD, fair use, efficiency, deadweight loss, incentives to creation
JEL Classification: K12, K11, L11, L12, L13, D40, D45, O34, O30
Date posted: October 20, 2008 ; Last revised: December 17, 2012