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10 Rev. Econ. Rsch. on Copyright Issues 1 (2013)

handle is hein.journals/rvwoecrh10 and id is 1 raw text is: Review of Economic Research on Copyright Issues, 2013, vol. 10(1), pp. 1-19 DISSEMINATION MUST SERVE AUTHORS: HOW THE U.S. SUPREME COURT ERRED WENDY J. GORDON ABSTRACT. The US Congress has enacted expansions of copyright which ar- guably impose high social costs and generate little incentives for authorial creativity. When the two most expansive statutes were challenged as un- constitutional, the US Supreme Court rebuffed the challenges, partly on the supposed ground that copyright law could legitimately seek to promote non- authorial interests; apparently, Congress could enact provisions aiming to sup- port noncreative disseminative activities such as publishing, or restoring and distributing old film stock, even if authorial incentives were not served. Such an error might have arisen because of three phenomena (in economics, history, and law, respectively) that might easily be misunderstood but which, when unpacked, no longer lead plausibly to a stand-alone embrace of disseminator interests. The purpose of this article is to analyse and comment on this error from several relevant points of view. 1. INTRODUCTION: THE ERROR OF THE SUPREME COURT In 1998, the United States Congress extended the already long copyright term by another twenty years. Challengers to the statutory extension brought lawsuits claiming that the extension was unconstitutional and thus invalid. In support of such a challenge, seventeen noted economists, including five Nobel laureates, signed a brief submitted to the Supreme Court (see Akerlof et al., 2003). In this nearly unprecedented document, the economists jointly stated that the then-recent extension of copyright term in the US could not appreciably increase incentives to authors (Akerlof et al., 2003, pg. 2). By implication, the economists' brief backed the common wisdom: that when the American Congress extended copyright from life of the author plus fifty years to life-plus-seventy, the goal was not to encourage new authorship; rather, the industry actors who primarily stood to benefit were downstream copyright holders, primarily companies like Disney that profit by exclusive control over the dissemination of authorial works created long ago. The statute in question, formally known as Copyright © by Wendy J Gordon 2013. For comments on this essay Prof. Gordon is grateful to Jessica Litman, Jessica Silbey, Rebecca Tushnet, and Richard Watt; to BU's Stacey Dogan, Paul Gugliuzza, and Keith Hylton; and of course to the other participants at the 2012 SERCI Congress. For exemplary research and editorial assistance she thanks Alexandra Arvanitis, BU class of 2014.

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