Introduction, in Critical Concepts in Intellectual Property Law: Copyright

Abstract

The two-volume set entitled Critical Concepts in Intellectual Property Law: Copyright brings together a thought-provoking collection of landmark and recent scholarship on copyright. Section 1 of Volume I focuses on the history of copyright, with Tyler Ochoa and Mark Rose providing an example of the prevailing interpretation of the history and articles by Thomas Nachbar and by William Treanor and Paul Schwartz offering fresh takes on the early English and American experiences. Section 2 focuses on copyright’s philosophical foundations, framed by the work of Justin Hughes and followed by revisionist perspectives on Lockean and Hegelian theory offered by Seana Shiffrin and Jeanne Schroeder. Section 3 focuses on democratic theories, presented through the work of Neil Netanel and a critique of Netanel authored by Shyamkrishna Balganesh.

Volume II examines the economics of copyright. Section 1 of Volume 2 covers public goods economics, monopoly theory, and price discrimination, introducing the concepts through the work of Terry Fisher before turning to Michael Meurer’s and Christopher Yoo’s critiques and extensions of the conventional wisdom. Section 2 focuses on transaction cost economics, beginning with Wendy Gordon’s classic article on fair use, followed by Robert Merges’s celebrated study of how holders of intellectual property rights can contract into liability rules, Abraham Bell and Gideon Parchomovsky’s analysis of the forces that can drive a legal regime from open access property to private property and vice versa, and Clarisa Long’s discussion of the way that intellectual property can minimize information costs. Section 3 explores the political economy of copyright, including Jessica Litman’s analysis of the political dynamics surrounding the Copyright Act of 1976, Thomas Nachbar’s review of Noah Webster’s campaign to establish copyright in the colonies and the early United States, and Robert Merges’s survey considering theories of political economy that go beyond simple rent seeking.

Keywords: Intellectual Property Law, historical interpretation, monopolies, philosophy of copyright, Locke, Hegel, democratic theories, pure public goods, transaction costs, fair use, New Institutional Economics, reconfiguration of property, colonial & early U.S. legislation, political economy of IP rights

JEL Classification: K11, O34