ABSTRACT
Copyright law is famously described in ex post terms. Much emphasis is placed on the doctrine’s various uncertainties, resolved only after lengthy and expensive litigation. Few have considered the role that the billion-dollar entertainment insurance industry might play in reversing this typical narrative. Elsewhere, insurance law scholars have long acknowledged insurance’s role as an ex ante regulatory tool, complementing or even supplanting government oversight in industries as diverse from policing to corporate governance. This Essay argues that in the creative industry, too, insurance acts as a form of ex ante copyright: a regulatory tool within the copyright system that can, if designed correctly, provide greater certainty and facilitate, rather than chill, creativity up front.
The very availability of insurance increases the well-documented phenomenon of moral hazard, or, greater risk-taking. Yet, and unlike in other areas such as auto, health, or fire insurance, creative moral hazard might be positive, exhibiting a counteracting force to a variety of uncertain ex post chilling copyright doctrines. And while the typical role of the insurer is to reduce moral hazard, the changing landscape of content liability insurance – for example, that insurers are increasingly more willing to issue policies based on fair use rather than requiring licenses – evinces the uniqueness of copyright infringement torts, in which complete reduction has never been, nor should be, the goal. Studying the evolution of liability insurance in the content industries is also instructive for general insurance law scholarship, as it suggests that there may be some torts, like copyright infringement, for which there is an optimal level of tortious conduct and, in turn, some optimal level of moral hazard.
Tang, Xiyin, Ex Ante Copyright (October 10, 2026), Journal of the Copyright Society (forthcoming 2027).
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