Garcia and McCrary, ‘A Reconsideration of Copyright’s Term’

ABSTRACT
For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first 5-10 years following its initial release (and in many cases, far sooner than that).

Our analysis suggests at least two results of interest to legislators, lawyers, and scholars alike: First, it contributes to the normative debate around copyright’s incentive-access paradigm by proposing a more efficient conception of copyright’s term for information goods; namely, one that replaces the conventional ‘life plus’ durational standard with one based on the commercial viability of the average work. Second, it demonstrates that advocates’ and legislators’ tendency to focus on atypical works leads to overprotection of the average work, suggesting that copyright’s term is not nearly as significant for copyright owners as conventional wisdom submits.

Garcia, Kristelia and McCrary, Justin, A Reconsideration of Copyright’s Term (March 21, 2019). Alabama Law Review, forthcoming.

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