On 2/25/97, John Lederer <johnl[_at_]ibm.net> wrote:
> >
> > Why do you say monopoly? Say rather "exclusive right."
>
> Is there a functional difference in regard to copyright?
Yes. An exclusive right does not necessarily confer market power. For a classic discussion of this question in the patent context, see Ed Kitch's "Are Patents Monopolies?" Kitch concluded that they almost never are -- and copyrights are generally believed to be even less exclusive than patents.
> The Supreme Court has often used the term "monopoly" or "copyright
> monopoly" to describe the right conferred by the government:
I know. They have a problem that way -- they talk about patents in the same vein.
>> This may or may not be a monopoly, but I find it very difficult to >> think of circumstances where copyright would constitute a monopoly.
The term "monopoly" gets used in two senses in the law. The first is in the old Statute of Anne sense -- copyrights are clearly not monopolies in this sense; they are a right to exclude, not an affirmative right to practice. (For example, I may hold a copyright in obscene materials, but cannot legally distribute them, perform them, etc.)
The second sense is that of an antitrust monopoly, and as I say, it is extremely difficult to think of a situation in which copyright to a particular form of expression will give the holder sufficient market power to become a monopolist.
> If I have the copyright to "War and Peace" I may sell it at any
> price I choose and no one else can offer 'War and Peace" for sale.
> My only price restraint is the level at which the public decides
> they would rather read "Gone with the Wind".
That is one of your price restraints, and will usually be enough to keep you from gaining significant market power. The second restraint is of course the ability of someone else to write a novel on the same theme as "War and Peace" that may serve as a close substitute.
> Would this be an adequate description: 'The copyright holder holds
> no monopoly in regard to the idea, but he has a state granted
> monopoly in regard to a expression of the idea'.
The problem in this regard is that (like the Supreme Court) you are now using the term "monopoly" in yet a third sense. When this gets confused with one or the other of the first two senses, you get really bad antitrust and/or copyright misuse decisions.
The better description is, "The copyright holder holds an exclusive right in the expression, which may or may not give her sufficient market power to constitute a monopoly."
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