A Positive Externalities Approach to Copyright Law: Theory and Application
The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest.
In order to understand the economic approach and the inconsistency of copyright law, as well as the thesis of this article, it is necessary to understand the concepts of "externalities" and "public goods." Externalities can be negative or positive. In the context of actions that impose costs on others, the key concept is "negative externalities" -- the harm to others resulting from the activity of another. When it comes to copyright, the key concept is "positive externality" -- the benefits to others resulting from the activity of another. The underlying thesis of this Article is that positive and negative externalities are complements, and it is important to treat them similarly. Legal scholarship tends to address negative externalities disproportionately -- in the interests of "allocative efficiency." Allocative efficiency is not likely to be achieved, though, by only treating one side of the externality problem.