Syed and Bracha, ‘Beyond Efficiency: Consequence-Sensitive Theories of Copyright’

A major development in the analysis of copyright in the last two decades has been the emergence of ‘democratic’ theories of cultural expression, challenging the long-standing dominance in this field by normative theories of natural rights and economic efficiency. The central thrust of democratic theories is to emphasize the significance of the expressive activities regulated by copyright law not only for political life, but also for individual self-authorship and robust engagement by persons in their surrounding culture, to take an active part in social processes of meaning-making. However, a major stumbling block facing democratic theories has been a lack of understanding, by both advocates and skeptics, of how democratic theories relate to rival views in terms of concrete implications for specific questions of copyright law and policy. In particular, democratic (and, as we show, distributive-equity) theories seem to share with economic analysis an attractive attentiveness to the consequential effects of copyright, in contrast to so-called ‘deontological’ natural-rights views. Yet, by that same token, it has been unclear precisely when – and on what grounds – democratic theories offer distinct prescriptions from the one commended by economic analysis, which is to achieve an optimal balance between the maximal production and wide dissemination of expressive works valued by consumers.

This Article contributes to the further development and reception of this emerging normative camp by clarifying its relationship to dominant rival views …

Syed, Talha and Bracha, Oren, Beyond Efficiency: Consequence-Sensitive Theories of Copyright (August 31, 2013). Berkeley Technology Law Journal, volume 29, (2014).

First posted 2021-11-19 18:00:32

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