An Information Theory of Copyright Law

59 Pages Posted: 25 Sep 2014 Last revised: 14 Nov 2014

See all articles by Jeanne C. Fromer

Jeanne C. Fromer

New York University School of Law

Date Written: November 2014

Abstract

The dominant American theory of copyright law is utilitarian, in offering the incentive of limited copyright protection to creators to generate material that is valuable to society. Less settled is the question of the sorts of works that copyright law seeks to encourage: Ever more copyrightable creations? Only some that are artistically worthy? What makes a work valuable to society? This Article seeks to answer important aspects of these questions by examining them through the lens of information theory, a branch of applied mathematics that quantifies information and suggests optimal ways to transmit it. Using these concepts, this Article proposes that what makes expressive works valuable to society is that they make a contribution in at least one of two principal ways: by using that expression to communicate knowledge — be it systematic, factual, or cultural — and by conveying expression that is enjoyable in and of itself. Information theory sheds light on how copyright law can spur these valuable works. In undertaking this analysis, this Article explores the implications for the central doctrines of copyright law, including copyrightability, the idea-expression distinction, infringement, and fair use. In this context, this Article also considers whether we want distinct creators communicating these valuable types of information or whether it is optimal to unify particular communications of information in a single creator.

Keywords: copyright, information theory, redundancy, redundant, copyrightability, idea-expression, infringement, fair use

JEL Classification: K00, K11, O34

Suggested Citation

Fromer, Jeanne C., An Information Theory of Copyright Law (November 2014). Emory Law Journal, Vol. 64, p. 71, 2014; NYU Law and Economics Research Paper No. 14-27; NYU School of Law, Public Law Research Paper No. 14-60. Available at SSRN: https://ssrn.com/abstract=2500614

Jeanne C. Fromer (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States

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