In His Seminal Article, Harvard Law School Professor Stephen Breyer Questioned the Economic Justification for Granting Copyrights to Publishers

Copyright law, the legal regime mostly tied to the emergence of the printing press, may now come into question. Three hundred years ago, the Statute of Anne was adopted; this was the first copyright law actually tailored to address the book industry. Historically, publishers led the legal battles for adopting copyright laws that would enable them to obtain exclusive rights. Publishers have long argued that both the author and the investment of publishers in bringing a book to the market must be protected under copyright law. For many years, it was assumed that the interests of publishers and authors coincide, as publishers bear the cost and the risk involved in marketing a book. With the rise of eBooks, the role of publishers is declining, and consequently the case for granting copyrights to publishers is weakening.

Back in the 1970s, Justice Stephen Breyer, then a professor at Harvard Law School, questioned the economic justification for granting copyrights to publishers. In his seminal article, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, Breyer argued that copyright must be justified in a particular economic context and that technological changes may alter economic conditions, thus demanding a different legal policy. Breyer’s article is an invitation to challenge the necessity of copyright in a changing technological environment. Applying Breyer’s approach to digital publishing demonstrates the role of copyright in shaping digital markets.

This Essay questions the wisdom and legitimacy of granting copyright to publishers as the book market enters the digital age.

--Niva Elkin-Koren, "The Changing Nature of Books and the Uneasy Case for Copyright," George Washington Law Review 79, no. 6 (September 2011): 1713-1714.