Re: copyright expiration as a spur to creativity

On 7/28/98, Dan Burk <burkdanl[_at_]shu.edu> wrote:
>
> However, if we are asking whether we should *extend* the term, it
> seems to me that we look at the extension ex ante, from the point of
> view of the creator, and ask what the marginal value of the extension
> would be in inducing *more* creation than we had under the minimal
> term. That marginal value gets balanced against the aggregate
> disutility of the longer term -- in other words, we aren't interested
> in the ex ante view of those who are denied the good.
>
> I'm pretty sure that's the right comparison, but tell me if you have
> a different view.

I think I do have a different view, though I could certainly be mistaken (wouldn't be the first time). We seem to agree on how to measure the potential benefit of an extension in the copyright term, but we seem to disagree on how to measure its potential costs.

How about the following example: suppose that the copyright term is 10 years. Under a ten-year term, there is a certain aggregate level of incentive to creators and a certain aggregate level of disutility to consumers. Suppose now that we are trying to decide whether to extend the term by one year. The benefit would be the added incentive effect from the ability to exploit copyrighted works during the additional year tacked on at the end of the current term. The cost would be the added disutility from exclusion of consumers from lower-cost access to all works *during that additional year of copyright protection.* It would not include the aggregate disutility from the existing 10-year term because that disutility already exists under the current term.

Does this make sense, or am I missing something? (As I mentioned earlier, this discussion to me is purely academic, since I agree with you that the added incentive effect of the current copyright extension bill is minimal. Still, I would like to try to figure this out.)

JOe.

--
Joe Liu, Teaching Fellow 
Harvard Law School Langdell 175B
Cambridge, MA 02138
(617) 496-3141; liu3[_at_]law.harvard.edu