ABSTRACT
The contractual relationship between author and intermediary – be it a producer, publisher, or anyone facilitating the commercial exploitation of the author’s copyrighted works – is often viewed as an unequal one. Other than a minority of superstars, the vast majority of authors are forced to accept contractual terms dictated by their powerful counterparties. This outcome is perceived by many scholars and policymakers as undesirable. Thus, in an effort to protect the authors’ wellbeing in their contractual dealings, legislatures from around the world are increasingly keen to adopt regulatory measures that limit the menu of options the parties can adopt contractually. Specifically, these instruments endeavor to offset author’s weak bargaining position either by ensuring a minimum level of remuneration to authors’ ex-ante or providing them with an inalienable right to ask for a modification of the compensation stipulated in the contract ex-post or by granting them an inalienable right to regain control of their previously transferred rights. Overall, these legislative interventions are seemingly based on the assumption that regulating author-intermediary transactions ex ante and ex post will invariably improve the financial situation of authors as a whole. This assumption is mistaken.
Yifat Nahmias, The Cost Of Coercion: Is There A Place For ‘Hard’ Interventions In Copyright Law?, 17 Northwestern Journal of Technology and Intellectual Property 155 (2020).
First posted 2020-03-06 06:31:50
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