Autonomy, Copyright, and Structures of Creative Production
57 Pages Posted: 6 Oct 2021 Last revised: 15 Oct 2021
Date Written: September 3, 2021
Whether and how copyright promotes creative expression is the central question of copyright law. The standard rationale—that copyright provides economic incentives to create—has attracted sustained critique. Supplementing existing theories, this Article advances a novel organizational theory for how copyright contributes to creative expression. Drawing on the theory of the firm, it argues that copyright supports a transactional model in which creative individuals and small entities can work independently from large intermediaries that commercialize their works. Such independence, moreover, affords creators meaningful organizational autonomy, which is particularly conducive to creative expression. In elaborating this theory, this Article examines three principal creative industries: film production, music recording, and book publishing. It makes two related descriptive claims. First, it argues that these industries feature significant (though varying) degrees of vertical disintegration in upstream content production. Second, it argues that copyright, while not strictly necessary or sufficient to sustain vertical disintegration, plays an important role in lowering the cost of such industrial organization. By conferring upon creators a low-cost, easily obtainable exclusive right to expressive works, copyright enhances the viability of a transactional model in which creative individuals and small entities can maintain some separation from large intermediaries. Additional elements of copyright law, notably the works-made-for-hire doctrine, help creators establish modular, project-specific social structures to complete particular projects.
These descriptive claims reveal an underappreciated mechanism by which copyright promotes creative expression. This Article argues that copyright indirectly promotes creative expression by expanding the range of viable organizational forms and supporting structures conferring greater autonomy to creators. This Article presents psychological and sociological evidence indicating that creators greatly value autonomy, which leads to more and better creative output. It cautions, however, that while copyright-mediated vertical disintegration may promote creativity, it leaves creators vulnerable to power imbalances vis a vis large intermediaries. Finally, this Article argues that copyright will continue to promote autonomy for creators within the current revolution in digital distribution. Ironically, it will do so not by facilitating more vertical disintegration, but by facilitating new forms of vertical integration in which creators bypass traditional intermediaries and distribute works directly to audiences.
Keywords: Copyright, intellectual property, theory of the firm, industrial organization, vertical integration, vertical disintegration, movie production, music recording, book publishing, independent contractors, autonomy
JEL Classification: L10, L12, L14, L22, L23, L25, O34
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