copyright & monopoly

Was: Re: public domain question

On Tue, 28 Mar 2000, Karsten M. Self <kmself[_at_]ix.netcom.com> wrote:
>
> No. The monopoly aspect of copyright and patent (and also trademark)
> are significant. From an economic perspective (my own bent), this
> *is* the whole of the law. Even the language of III.8 "securing for
> limited times to authors and inventors the exclusive right" -- an
> exclusive right is a state-sanctioned monopoly.

A copy"right" does not constitute a monopoly in economic or legal terms. Nor does a trademark "right" or a patent "right". The vast number of registered copyrights and trademarks, and issued patents, give their owners no ability to control prices in a relevant geographic and product market. In some cases the right to exclude others from making, using and selling a patented article or process can provide the owner with the ability to control prices. This is rare however.

Without getting into the "property" vs. "right" conundrum, I have always viewed it like this: the right to exclude others from enjoying the exclusive rights in Sec. 106 is akin to the right in common law to exclude others from trespassing onto your real property, or exercising dominion and control over your tangible personal property. If you own only a small piece of property in a market and there are reasonably available alternatives, these rights to exclude others cannot affect prices - people will just choose a lower price but reasonably equivalent alternative. If you control enough property in a specific market, however, and there are no reasonably available alternatives, you *can* control prices, exclude competitors and otherwise earn above competitive level profits. That's the true monopoly.

Getting back to the copyright context - asserting a right to prevent another person from say, copying your tangible original work product, is hardly ever going to constitute a legal or economic monopoly - particularly because copyright only protects expression and not ideas, and because copyright does not prohibit independently created works - even identical ones. This is not to say, however, that the copyright that subsists in a work might not be misused, or that the owner of it might not tie the copyright to some other right and thereby establish or perpetuate a monopoly...

best regards, mike oliver
bowie & jensen, llc
<mikeoliver[_at_]home.com> Received on Thu Mar 30 2000 - 03:31:10 GMT