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6 Tex. A&M J. Prop. L. 1 (2020)

handle is hein.journals/txamrpl6 and id is 1 raw text is: COPYRIGHT'S EXCESS: SYMPOSIUM FOREWORD Saurabh Vishnubhakat f The focal point of this symposium is COPYRIGHT'S EXCEss, Glynn Lunney's thoughtful and trenchant critique of copyright law's effects on the U.S. recording industry.1 Before delving into the book's contri- bution and into the chorus of scholarly replies that it has inspired, it first bears mention that both the book and its author share a cardinal strength: practicality. As Professor Lunney's colleague at Texas A&M, I have heard him remark more than once that each of his three fields of formal study-engineering, then law, and eventually econom- ics-is ultimately concerned with solving problems. Problem solving is also the basic template of COPYRIGHT'S EXCESS. If a principal aim of copyright law in the United States is to encourage the creation of new works, and if the scope and duration of our copyright protection have systematically grown since the Founding,2 then here immediately we have specified our problem and described our long-accepted solu- tion. But has it really been a solution? Professor Lunney offers theoretical and empirical arguments that say no. Where the sound recording copyright is concerned, he identi- fies various periods of inflation-adjusted increase, decrease, and con- stancy in music industry revenue over more than a half-century, from 1961 to 2014.3 Contrary to expectation, he finds that during periods of increased sales revenue correspond to both fewer4 and lower-quality' songs, and vice-versa. His explanation, in brief, is that although over- all earnings from copyright rents may go up, those earnings flow largely to a small subset of top artists, whereas the economic returns to new artists at the margin remain relatively flat.6 Moreover, even the disproportionate return to top artists does not actually lead them to produce more music but instead leaves them unhurried to rush back into the studio.' The hope of reaching a similar pinnacle does bring some new entrants-and, with them, new music-into the mar- ket, but they face a high risk (in general) of failure and a high inci- DOI: https://doi.org/10.37419/JPL.V6.I1.1 t Professor, Texas A&M University School of Law; Professor, Texas A&M Uni- versity Dwight Look College of Engineering; Fellow, Duke Law Center for Innova- tion Policy. 1. GLYNN LUNNEY, COPYRIGHT'S EXCESS: MONEY AND MUSIC IN THE U.S. RE- CORDING INDUSTRY (2018). 2. Id. at 1-2. 3. Id. at 59 et seq. (discussing measures of sales revenue in the recording industry). 4. Id. at 84 et seq. (discussing measures of music output). 5. Id. at 122 et seq. (discussing measures of music quality). 6. Id. at 5. 7. Id. 1

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