Copyright and Creative Incentives: What We Know (and Don't)

Abstract

The dominant justification for copyright in the United States is consequentialist. Without copyright, it is claimed, copyists will compete away the profits from new artistic and literary creativity, thereby suppressing incentives to create new artistic and literary works in the first place.

This is a sensible theory. But is it true? On that question, we have little evidence. This Article examines some of the empirical work examining the link between copyright and the incentive to create new works. The Article introduces readers to a sampling of the existing empirical work, which includes event studies (aka, natural experiments), qualitative studies of creativity undertaken in so-called “low-IP” settings, and laboratory experiments. At this early point in the empirical study of copyright, the link between copyright and creative incentives appears to be considerably less robust than theory may have led us to expect.

This Article is adapted from a talk given at the University of Houston Law Center’s Institute for Intellectual Property and Information Law Spring Lecture (presented March 30, 2017).

Keywords: copyright, intellectual property, law and economics