Copyright Divisibility and the Anticommons
48 Pages Posted: 12 Oct 2016 Last revised: 6 Nov 2016
Date Written: October 11, 2016
This Article provides an overview of the problems stemming from copyright divisibility, which creates the multitude of rights and right holders over one single copyrighted work. The fragmented copyright has led to significant uncertainties for users and huge transactions costs for the exploitation, dissemination, and enforcement of copyright. This problem mirrors the tragedy of the anticommons defined by Michael Heller when he observed the underuse of property and resulting inefficiency in the post-communist Russian economy. Copyright divisibility results in the tragedy of the anticommons, where overly fragmented ownership causes excessive transaction costs for users and consequent underuse of the subject property. This Article, therefore, uses anticommons theory as a lens to analyze copyright divisibility, its consequential costs on users and the society, and possible policy solutions. Those policy proposals include consolidating current bundles of exclusive rights, and adopting an implied license doctrine to the incidental use of copyrighted work based on one single exclusive right. Furthermore, this Article assesses whether a more streamlined collective copyright management mechanism can solve the predicament in current copyright regime. This Article also provides a comparative law perspective, examining judicial treatment of users’ costs in obtaining multiple licenses for a single use of copyrighted work in different jurisdictions.
Keywords: copyright divisibility, anticommons, overlapping rights, implied license, copyright management organization
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