The Uneasy Case for Copyright
"The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" was an article in the Harvard Law Review by United States Supreme Court Justice-to-be Stephen Breyer in 1970, while he was still a legal academic.
In this extensive and extremely thorough piece, Breyer made several points:
- That the only defensible justification of copyright is a consequentialist economic balance between maximising the distribution of works and encouraging their production.
- That there is significant historical, logical and anecdotal evidence which shows that exclusive rights will provide only limited increases in the volume of literary production, particularly within certain sections of the book market.
- That there was limited justification for contemporary expansions in the scope and duration of copyright.
"The Uneasy Case for Copyright" was a profound challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in Northern countries.
There was a formal reply by a law student, Barry W. Tyerman, in the , and a rejoinder by Breyer, but the article appears to have had little impact on copyright policy in the lead up to the Copyright Act of 1976.
It did, however, become one of the most widely cited skeptical examinations of copyright, and it remains unsurpassed as a fundamental text in the critical study of intellectual property laws.
In their seminal mathematical law and economics article "" (1989), Landes and Posner systematically analysed each of Breyer's arguments and concluded that "they do not make a persuasive case for eliminating copyright protection." In particular they noted that many of his arguments rested on imperfect copying technology, an argument which weakens with technological innovation.
References
- Stephen Breyer (1970). "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs". Harvard Law Review 84 (2): 281–355.
- Stephen Breyer (October 1972). "Copyright: A Rejoinder". UCLA Law Review 20: 75–83.
- William M. Landes and Richard A. Posner (1989). "An Economic Analysis of Copyright Law". Journal of Legal Studies 18 (2): 325–363.
- Barry W. Tyerman (June 1971). "The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer". UCLA Law Review 18: 1100–1125.