Incentives to Create Under a Lifetime-Plus-Years Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldred v. Ashcroft

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals\u27 incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals\u27 optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to individual authors is socially desirable, a lifetime-plus-years rule is a more effective legal means of accomplishing this goal than a rule based on a fixed term of years of a comparable expected duration. We also find, however, that the behavioral efficacy of a lifetime-plus-years regime does not apply to the Copyright Term Extension Act (CTEA), which merely extends the years component of an already existing lifetime-plus-years rule. Drawing on empirical findings on intertemporal choice, as well as our preceding analysis of the lifetime-plus-years regime and our own experimental tests, we determine that the CTEA\u27s prospective extension provides negligible additional incentives to individual authors. We conclude the extension is unjustified on incentive-provision grounds, a finding of relevance to the Court\u27s determination in Eldred v. Ashcroft of the constitutionality of the CTEA under the Copyright Clause

Copyright\u27s Race, Gender and Age: A First Quantitative Look at Registrations

On a per capita basis, do African-American authors produce more copyright registrations than non-Hispanic whites? Do men and women show a within-group bias in choosing co-authors? And what decade in the average musician’s life is the most productive? This article provides answers to these questions – which happen to be yes, yes, and the 20s, respectively – and many more by statistically analyzing the 15 million entries that comprise the Copyright Office’s full record of registered works from 1978 through 2012. It provides a variety of perspectives on individuals’ creativity in modern-day America and on the beneficiaries of our copyright system along the axes of race, gender and age. Its findings suggest a need to promote greater diversity and equality in the processes of cultural production and the making of social meaning

Right On Time: A Reply to Professors Allen, Claeys, Epstein, Gordon, Holbrook, Mossoff, Rose, and Van Houweling

A simple observation started us off in writing Right on Time. Studying and teaching intellectual property law, we noticed striking parallels between traditional first possession rules in property law and analagous rules governing the acquisition of patent, copyright, and trademark rights. We thought that established first possession principles could illuminate the workings of IP law. As we dug in, however, it became increasingly clear that our premise wasn’t quite right. While many penetrating commentators had said many penetrating things about first possession, the leading treatments tended to focus on significant individual aspects of the overall issue. What we could not find was a synthetic treatment that knitted together the accumulated insights in the literature in a comprehensive way, showing how the different parts of the puzzle relate to one another. And so our project grew. The final article sought to accomplish two goals: first, to set out a unified theoretical framework for first possession of the sort that seemed to be missing from the literature and, second, as originally planned, to apply that framework to patent, copyright, and trademark law to show both the similarities and differences with real and tangible property. [...] Our goals were thus reasonably ambitious, and it is immensely gratifying to have elicited responses from eight leading property and intellectual property scholars, all of whom influenced our own thinking in developing our thesis. We are even more gratified by their kind words about the fruits of our labors. But like them, we are probably more interested in points of departure than in our many areas of agreement. Our attempt to articulate an omnibus account of the dynamics of first possession systems was always going to be vulnerable to charges that some variables deserved greater emphasis than we could give them, and several of the thoughtful responses to our article single out elements of the first possession story for greater attention. These comments have spurred some further thinking on our part and in some cases called attention to aspects of our original article that may need clarification, and we are grateful to the editors of this journal for the chance to add a few additional words to the conversation. This abstract has been taken from the authors\u27 introductory paragraphs

Right on Time: First Possession in Property and Intellectual Property

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts in the first place. While the doctrinal resolution of these timing questions varies in different resource contexts, the determination depends upon a recurring and discrete set of functional considerations. This Article applies its theory to assess a host of doctrinal features in our patent, copyright, and trademark laws, to analyze recent intellectual property law developments, and to suggest directions for reform

Copyright\u27s Race, Gender and Age: A First Quantitative Look at Registrations

On a per capita basis, do African-American authors produce more copyright registrations than non-Hispanic whites? Do men and women show a within-group bias in choosing co-authors? And what decade in the average musician’s life is the most productive? This article provides answers to these questions – which happen to be yes, yes, and the 20s, respectively – and many more by statistically analyzing the 15 million entries that comprise the Copyright Office’s full record of registered works from 1978 through 2012. It provides a variety of perspectives on individuals’ creativity in modern-day America and on the beneficiaries of our copyright system along the axes of race, gender and age. Its findings suggest a need to promote greater diversity and equality in the processes of cultural production and the making of social meaning

Right on Time: First Possession in Property and Intellectual Property

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts in the first place. While the doctrinal resolution of these timing questions varies in different resource contexts, the determination depends upon a recurring and discrete set of functional considerations. This Article applies its theory to assess a host of doctrinal features in our patent, copyright, and trademark laws, to analyze recent intellectual property law developments, and to suggest directions for reform

Incentives to Create Under a Lifetime-Plus-Years Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldred v. Ashcroft

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals\u27 incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals\u27 optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to individual authors is socially desirable, a lifetime-plus-years rule is a more effective legal means of accomplishing this goal than a rule based on a fixed term of years of a comparable expected duration. We also find, however, that the behavioral efficacy of a lifetime-plus-years regime does not apply to the Copyright Term Extension Act (CTEA), which merely extends the years component of an already existing lifetime-plus-years rule. Drawing on empirical findings on intertemporal choice, as well as our preceding analysis of the lifetime-plus-years regime and our own experimental tests, we determine that the CTEA\u27s prospective extension provides negligible additional incentives to individual authors. We conclude the extension is unjustified on incentive-provision grounds, a finding of relevance to the Court\u27s determination in Eldred v. Ashcroft of the constitutionality of the CTEA under the Copyright Clause