Copyright and 'Market Power' in the Marketplace of Ideas

Abstract

Antitrust and intellectual property law increasing fall within the common rubric of innovation policy. Yet in fundamental respects, patent law fits more comfortably under that umbrella than copyright. A primary reason is that copyright does not merely spur innovation. It also regulates speech.

In building upon that observation, this Chapter addresses a number of points at the intersection of antitrust, media concentration, copyright, and free speech. First, it surveys the conflict between copyright and free speech, as recognized in both United States and European jurisprudence. Second, it focuses on media industry incumbents' repeated use of copyright to bar entry to new speakers and speech distributors, and the very limited efficacy of current U.S. antitrust doctrine in constraining that practice. Third, it considers a number of ways in which the marketplace of ideas differs from markets for goods and services, including (1) the contrast between expressive diversity and media product differentiation, (2) the tendency of demand for expression to follow a winner-take-all power law curve, and (3) the context-dependent nature of market power. Fourth, the Chapter asks whether copyright ever confers market power, relying on an average cost, normal profits metric rather than the commonly used marginal cost baseline.

The Chapter concludes by demonstrating that what begins as economic analysis of copyright's optimal scope must, by its very terms, ultimately turn on broad social policies regarding the desired shape and contours of our system of freedom of expression. Accordingly, to determine copyright's scope and limitations, we must look to free speech law and policy, not just the law and policy that underlie antitrust.

Keywords: antitrust, copyright, free speech, media

JEL Classification: A13, D23, D43, H41, K21, K23, L40, Z10