As the costs of creating and sharing information have plummeted, some scholars question the continued utility of copyright protection, which imposes artificial scarcity so that authors can recoup creation and dissemination costs. Scholars have ignored, however, that when information is abundant, attention becomes a scarce resource. Superabundant information can overtax consumer attention.
Reducing copyright protection in this new environment may worsen the costs of attention scarcity on consumers of creative expression. Firms often compete for attention by free riding on the public interest generated by copyrighted works. If copyright protection is narrowed, new entrants have reduced motivation to create works that are clearly distinguishable from existing works. Indeed, a new entrant is more likely to create a close substitute for an existing work already available to consumers than to spend the time necessary to create a distinctly original contribution. Thus, new works are more likely to be wastefully duplicative of available content.
Calls to diminish copyright protection in response to falling costs of creation and dissemination often target the derivative right as the first mechanism to weaken or excise. But preserving copyright protections – especially the derivative right – may have unexpected benefits for consumers, including keeping attention costs in check. The effort required to create around copyright constrains entry. Compared to entry under weaker copyright protection, new entrants are likely to offer works that are less redundant, and therefore both more valuable to consumers and less likely to distract or divert attention in ways that impose undue costs on consumers. Legislators and judge may wish to exercise caution before sacrificing the attention-assisting aspects of copyright protection based solely on the intuition that creators could survive with weaker incentives.
Linford, Jake, Copyright and Attention Scarcity (March 5, 2020). Cardozo Law Review, 2020.