Music Markets and Bad Actors in Copyright and Competition Law

Competition and Consumer Law Journal, Vol. 16, No. 2, 2008

U of Melbourne Legal Studies Research Paper No. 407

18 Pages Posted: 17 Jun 2009

See all articles by Arlen Duke

Arlen Duke

University of Melbourne - Law School

Megan Richardson

University of Melbourne - Law School

Date Written: June 16, 2009

Abstract

The economically focused understandings of intellectual property and competition law has generally resulted in courts adopting a welfarist approach to provide a policy frame for understanding and elaborating legal standards of liability. Under the welfarist approach, attention is focused on the effects of conduct and questions of industry economics and consumer, or user, welfare rather than the intent of the alleged wrongdoer. However, this situation may be changing. In a recent copyright infringement case and a recent case concerning exclusive dealing in the music industry, liability was imposed on the basis of the 'bad behaviour' of the defendant. That the cases are both to do with music is striking. It is possible that the subtle and evolving characteristics of music markets mean that a disciplined focus on industry economics and consumer or user welfare still eludes the courts, leading them to fall back on more intuitive moralistic answers. Although some are concerned about such moralistic reasoning, we argue that moralistic judgments may point to more sophisticated understandings of welfare effects and that combining moralistic and welfarist approaches should generally lead to results that are both socially beneficial and morally desirable.

Keywords: intellectual property law, competition law, copyright

JEL Classification: K00, K19, K39

Suggested Citation

Duke, Arlen and Richardson, Megan, Music Markets and Bad Actors in Copyright and Competition Law (June 16, 2009). Competition and Consumer Law Journal, Vol. 16, No. 2, 2008; U of Melbourne Legal Studies Research Paper No. 407. Available at SSRN: https://ssrn.com/abstract=1420393

Arlen Duke (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Megan Richardson

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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