The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs
![handle is hein.journals/hlr84 and id is 307 raw text is: DECEMBER 1970
HARVARD LAW REVIEW
THE UNEASY CASE FOR COPYRIGHT:
A STUDY OF COPYRIGHT IN BOOKS,
PHOTOCOPIES, AND COMPUTER PROGRAMS
Stephen Breyer *
Congress is currently considering the first major revision of the
Copyright Act of z9o9. Professor Breyer examines the moral and
economic rationale for copyright in books. He goes on to consider
proposals that would lengthen the term of protection and increase
its scope in relation to photocopies and computer programs. On the
basis of existing evidence he is unable to conclude that copyright
should be abolished, but lie argues that its extension is unnecessary
and would be harmful.
I. INTRODUCTION
M ACAULAY'S statement that copyright was a tax on read-
ers for the purpose of giving a bounty to writers ' reveals
the conflict of interest between the reader and the book producer
that underlies much of the discussion about copyright law.' The
reader wants cheap books. He knows that if the copyright law
did not provide an exclusive right to manufacture and sell a par-
ticular title,3 and thereby prevent competition in publishing each
book, some book prices would fall, making the book more readily
available. Moreover, he notes that once the ideas or language
that a book contains have been created, they are no more scarce
or costly than sunshine or air; and he believes that the public
should be able to obtain them easily.4 Although the reader ac-
cepts the need for payment to induce the author and publisher
* Professor of Law, Harvard Law School. A.B., Stanford, x959; B.A., Oxford,
x961; LL.B., Harvard, 1964. The author wishes to thank Javad Khalilzadeh for
his considerable help with this article.
I T. MACAULAY, SPEECHES ON COPYRIGHT 25 (C. Gaston ed. 1914) [herein-
after cited as MACAULAY].
2 Compare, e.g., Plant, The Economic Aspects of Copyright in Books, I EcoNo-
ArICA i67 (new series 1934) [hereinafter cited as Plant], and Hurt & Schuchman,
The Economic Rationale of Copyright, 56 AMT. EcON. REv., May, i966, at 421
(1965 Papers and Proceedings of the Amer. Econ. Ass'n), with M. NrCmER, Nim-
MIER ON COPYRIGHT §§ .3., 5.4, 48 (1970) [hereinafter cited as NIMERI. Plant
and Hurt & Schuchman contain useful discussions of the economics of copyright.
'The law, in fact provides an exclusive right to copy. 17 U.S.C. § i(a)
(1964). This right, in effect, allows the author (and the publisher who takes an
exclusive license from the author) to exclude others from the business of making
and selling books.
' See the separate report of Sir Louis Mallet, C.B., in RoYAL Com-iM'N ON
COPYRIGHT, THE ROYAL. COAAUSSIONS AND THE REPORT OF THE COAInISSIONERS
(London 1878) p. xlvi [hereinafter cited as Mallet]. Mallet added:
VOLUME 84
NUMBER 2](ViewImageLocal?handle=hein.journals/hlr84&div=23&collection=&method=preview&ext=.png&size=3)
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The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs
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