Imagine, if you will, a world of perfect information, where transactions are cost-less, and in that world, two possible copyright regimes. Both enable copyright owners to engage in perfect price discrimination with respect to every form of access to their original works of authorship. Both therefore avoid the peril of lost access. The first allows a copyright owner to capture the full exchange or market value of its work, as measured by each and every consumer’s willingness to pay. It therefore ensures sufficient incentives for every socially valuable work. The second caps the copyright owner’s return precisely at the owner’s persuasion cost for authoring and distributing that work. Because it does so perfectly, the second regime also ensures sufficient incentives for every socially valuable work. We might call the first regime ‘cost-less copyright maximalism’ and the second ‘cost-less copyright minimalism’. The choice between them is purely distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This article explores why this distributional choice matters and explains why copyright minimalism is the choice we should make.
Lunney, Glynn S, A Tale of Two Copyrights (February 26, 2020).