Recent Copyright Articles

Guy A. Rub, Rebalancing Copyright Exhaustion, Emory Law Journal (forthcoming, 2015)

In 2013, in Kirtsaeng v. John Wiley & Sons, the Supreme Court wrote another chapter in the ongoing story of copyright exhaustion. This important decision is part of a series of recent decisions in high-profile cases and a vibrant discourse, domestically and internationally, regarding the scope of copyright exhaustion, and, more broadly, the ability of copyright owners to control the distribution of their work along the chain of commerce. Unfortunately, this discussion rarely explores the modern justifications for copyright exhaustion, which makes it notoriously incoherent, inconsistent, and confusing. This Article suggests that copyright exhaustion should be primarily perceived as a tool to reduce information costs. Without it, buyers will need to inefficiently waste resources inquiring whether they will be able to resell copyrighted work. Because resale rights are typically socially desirable, especially as they eliminate waste, the law should usually provide those rights to buyers. Copyright exhaustion also has costs. The main cost is the reduction in the incentives to create that is the result of the limitation that copyright exhaustion places on certain price discrimination practices. The balance between the reduction in information costs and the harm to incentives should dictate the scope of the copyright exhaustion. This Article applies this balanced approach and explores the desired scope of copyright exhaustion. It concludes, inter alia, that it should not prevent copyright owners from exercising control over importation of copyrighted goods or over distribution of digital work. However, contracting around copyright exhaustion should be restricted and copyright owners should not be allowed to circumvent it just by including “magic words” in their standard-form agreements. 

Kate Darling, Occupy Copyright - A Law & Economic Analysis of U.S.Author Termination Rights, Buffalo Law Review (forthcoming)

U.S. law grants authors a contract termination right thirty-five years after the license or transfer of their copyrights. This Article contributes to the ongoing debate over this law by providing economic perspective. Because of price changes, risk allocation, hold-up problems, and other effects on author and publisher incentives, it predicts that the economic costs of introducing termination rights will outweigh the benefits. This work concludes that the current structure of author termination rights in the United States is at odds with its political justification, as well as the utilitarian purpose of copyright law. 

Ye Jiang, Changing Tides of Collective Licensing in China, 21 Michigan State International Law Review (2013)

The article examines the reform of collective copyright licensing in China. An overview of the copyright reform in the country in which the employment of an extended collective license system was affirmed by Chinese legislature. Also discussed are the transparent governance and dispute resolution mechanisms of collective rights management organizations (CMOs) in the country, and the copyright enforcement infrastructure in the digital era. 

Qiang Yu, Software Interoperability Information Disclosure and Competition Law, 35 European Competition Law Review 235-252 (2014)

Software interoperability information is indispensable in establishing connections among the parts of a program and to applications and users. According to the concepts of copyright and expression dichotomy and to the prevailing consideration that the function of software interoperability information has a bottleneck effect in restricting competition, the conceptual portions of software interoperability information are not protected under copyright, and software interoperability interfaces are subject to reverse engineering. This scope of copyright protection and the actual restriction on competition due to the refusal to disclose software interoperability information have convinced authorities and courts to grant a duty to disclose. However, in examining the compulsory disclosure of interoperability information and the competition situation in the software market, this study perceived that although the compulsory disclosure of software interoperability information is alleged to have certain benefits, it harms the copyright holder and, as a competition remedy, helps secondary market players at the expense of primary market players. This remedy in effect protects competitors, not competition throughout the entire market. Further, this study observes that when enlarging the scope of the compulsory disclosure of software interoperability information acts to create competition, it exceeds the function of competition law as an ex post remedy. 

Tobias Kretschmer & Christian Peukert, Video Killed the Radio Star? Online Music Videos and Digital Music Sales, (working paper series)

Sampling poses an interesting problem in markets with experience goods. Free samples reveal product quality and help consumers to make informed purchase decisions (promotional effect). However, sampling may also induce consumers to substitute purchases with free consumption (displacement effect). We study this trade-off in the market for digital music where consumers can sample the quality of songs by watching free music videos online. Identification comes from a natural experiment in Germany, where virtually all videos that contain music are blocked on a popular video platform due to a legal dispute with representatives of the rights-holders. We show that promotional and displacement effects cancel out in the sales performance of individual songs, whereas online music videos trigger sales of albums.