Tomer Stein, ‘Copyright and Dissent’

ABSTRACT
This Essay brings to the fore the hitherto unnoticed feature of copyright: Copyright incentivizes dissent and protects marginalized authors. Absent copyright protection that allows authors to recoup their risks and costs, producers of unpopular works that deviate from the mainstream would have no incentives to pursue their socially valuable endeavors, unlike authors who reap reputational gains from catering to popular opinion. This insight has the potential for changing the terms, as well as the conclusions, of the ongoing debate over the desirability of copyright protections. Specifically, I demonstrate that the dissent-protecting rationale both coherently explains and aligns with all justificatory accounts of copyright law. Furthermore, I uncover an important, yet underappreciated, alignment between copyright and the First Amendment protection of speech: both copyright and the First Amendment are engines of speech that would have otherwise been silenced.

Stein, Tomer, Copyright and Dissent (July 9, 2020). Texas Intellectual Property Law Journal, volume 28, 2020.

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