Relevant Markets for Copyrighted Works

Summary

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Much of copyright scholarship can be described as an effort to confine an increasingly broad entitlement. The author has argued elsewhere that copyright law no longer can afford to satisfy the actual expectations of creators, but should seek to satisfy their reasonable expectations instead. In this article, he explores how copyright law might look if it learned to speak the language of markets. He locates that language in antitrust law because for antitrust scholars, a market is a thing that can be observed and described in familiar terms. The calculations may be complicated, but the concept is straightforward enough: a relevant market, in antitrust terms, is composed of products that have reasonable interchangeability for the purposes for which they are produced -- price, use and qualities considered. Markets pervade copyright law, even if they go by other names. Congress grants copyright owners rights in markets (known as exclusive rights) by drawing the boundaries of the copyright entitlement.

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Relevant Markets for Copyrighted Works

I. INTRODUCTION .................................................................................................... 1059

II. THE LANGUAGE OF MARKETS ............................................................................. 1062

A. Antitrust Law ................................................................................................. 1062

B. Copyright Law............................................................................................... 1065

III. THE RELEVANCE OF MARKET DEFINITION TO COPYRIGHT LAW .......................... 1071

A. Tinkering with Fair Use ................................................................................ 1072

B. Rebuilding the Copyright Entitlement ........................................................... 1076

IV. CONCLUSION ........................................................................................................ 1081

I. INTRODUCTION

Much of copyright scholarship can be described as an effort to confine an increasingly broad entitlement. I have argued elsewhere that copyright law no longer can afford to satisfy the actual expectations of creators, but should seek to satisfy their reasonable expectations instead.1 While observers might disagree as to what sorts of expectations are reasonable, it seems clear enough that creators reasonably may expect to be monopolists in at least some markets for copies2 of their works. The difficulty comes in defining the market or markets in which copyright owners can claim exclusivity. But this is nothing new. Every argument that X should be beyond the reach of copyright law is an argument that X does not harm the copyright owner, or that X benefits the public more than it harms the copyright owner. We know by now what causes the greatest harm to copyright owners: unauthorized works that "fulfill[ ] the demand for the original,"3 or, in economic terms, market substitutes. In the end, is not every argument about the proper reach of copyright law an argument about copyright markets?

In this Article, I explore how copyright law might look if it learned to speak the language of markets. I locate that language in antitrust law because for antitrust scholars, a market is a thing that can be observed and described in familiar terms. The calculations may be complicated, but the concept is straightforward enough: a "relevant market," in antitrust terms, is "composed of products that have reasonable interchangeability for the purposes for which they are produced-price, use and qualities considered."4

There is no such language of markets in copyright law, and as a result, whe...

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