Articles, Books Against Copyright, Trademark, Patent -Reply

Juliet Casper <jmcl7s[_at_]nuls.law.nwu.edu> wrote:
>
>I have a student looking for articles or books arguing against
>copyright, trademark, and patent protection. We have searched
>Legal-Trac and our own catalog without much success. Are there
>specific legal scholars that advocate a public domain approach?
>Any leads appreciated.

In one of his early academic writings, Supreme Court Justice Stephen Breyer wrote an interesting piece in the Harvard Law Review examining the limitations of copyright protection. He argued that many aspects of book publishing would continue unaffected were copyright protection abolished. He saw the strongest case for copyright in connection with reference books or other popular texts with steady sales over long periods. These types of texts will have high fixed costs to the original publisher which that publisher will only recoup over a considerable time. To allow a second publisher to simply copy the first publisher's work would preclude this opportunity to recoup costs. Eventually, publishers would be hesitant to be the first to publish such works, leading to a reduction in works in this publishing segment. While recognizing this as a real threat to certain types of publishing, Breyer felt that even this objection to abolition of copyright might be overcome through the development of new means to channel money from readers to publishers to subsidize the publication of reference or popular works.

The citation for Breyer's article is as follows: Breyer, "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs," 84 Harv. L. Rev. 281 (1970). An extended critique and response to Breyer's arguments can be found in Tyerman, "The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer," 18 U.C.L.A. L. Rev. 1100 (1971).

I hope this is helpful.

Richard Gruner
Professor of Law
Whittier Law School
rgruner[_at_]law.whittier.edu Received on Mon Dec 05 1994 - 15:29:04 GMT