Copyrights as Incentives: Did We Just Imagine That?
Theoretical Inquiries in Law, Forthcoming
33 Pages Posted: 2 Dec 2009 Last revised: 1 Mar 2010
Date Written: November 30, 2009
The traditional explanation for copyright is that it is necessary as an incentive for authors to create. This incentive story, fitting neatly, as it does, into the assumptions of neoclassic economic theory, has largely gone unchallenged, and has been used as a justification for lengthening and strengthening the legal protections for expressive works, particularly in recent decades. As this paper attempts to show, however, the empirical foundation for the traditional incentive story is seriously suspect. Not only does it fail to account for the realities of the economic conditions under which most art, literature and other expressive works are produced, but it also does not mesh with the insights provided over the last forty years or so, first by psychologists interested in creativity and more recently by behavioral economists. The picture behavioral research paints of human motivation suggests that intrinsic factors are much more important determinants of participation in creative work than such extrinsic ones as monetary reward. In fact, evidence exists that the promise of such rewards as money can sometimes actually be detrimental to the creative impulse. This is not to say that providing for economic rewards should play no role at all devising a legal regime to encourage in the creative process. But, at a minimum, this paper suggests that copyright scholars (and possibly patent ones as well) need to develop a far more nuanced understanding of why people produce what they do, and that a satisfactory legal regime to promote intellectual property creation and dissemination can afford to be far less concerned that it presently is with trying to maximize the opportunity of authors and copyright owners to extract profit from their works.
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