On the Surprisingly Weak Economic Case for Copyright; for 400 Years Copyright Has Been Justified by the Fear That in Its Absence, We Will Have Too Few Original Works

From an economics perspective, the central justification for copyright has changed little since the Stationers’ Guild articulated it to the Star Chamber in 1586. In that year, the Stationers’ Guild wrote:

And further if privileges [that is, copyright] be revoked no books at all should be printed, within a short time, for commonly the first printer is at charge for the Author’s pains, and some other such like extraordinary cost, where an other that will print it after him, comes to the Copy gratis, and so may he sell better cheaper than the first printer, and then the first printer shall never utter [that is, sell] his books.

Almost exactly four centuries later, Professors Landes and Posner offered essentially the same justification, though phrased more contemporaneously:

In [the] absence [of copyright protection], anyone can buy a copy of the book when it first appears and make and sell copies. The market price of the book will eventually be bid down to the marginal cost of copying, with the unfortunate result that the book will not be produced in the first place, because the author and publisher will not be able to recover their costs of creating the work.

In short, for 400 years, copyright has been justified by fear – the fear that in its absence, we will have no, or perhaps more accurately, too few original works.

In the same way, for 400 years, the central limit on copyright has remained equally unchanged. Copyright raises the price of books, music, and other copyrighted works. That higher price simultaneously provides the incentive to create additional original works and limits access to existing works. The search for optimal copyright is therefore thought to entail a search for the optimal balance between incentives and access. . . .

In devising an optimal copyright system, this supposed balance between incentives and access has become the central guide. Too little copyright and we will have too few original works. Too much and we will not be able to enjoy the works we have. Only when we balance incentives and access appropriately, when we have neither too little nor too much copyright, will copyright be just right – or at least, that’s the conventional wisdom.

--Glynn Lunney, Copyright's Excess: Money and Music in the US Recording Industry (Cambridge, UK: Cambridge University Press, 2018), e-book.