[Commons-Law] Foreseeability and Copyright Incentives

[Pranesh Prakash]

Dear All,
Prof. Shyamkrishna Balganesh of the University of Chicago Law School has
written an article that takes us back to the bases of copyright law, and
from that perspective looks at the directions that the present law is
taking.  Do go through the article, which is going to be published in an
upcoming issue of the Harvard Law Review, and share your comments.

Regards,
Pranesh

Foreseeability and Copyright Incentives
Shyamkrishna Balganesh
http://ssrn.com/abstract=1117655

http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1117655_code583911.pdf?abstractid=1117655&mirid=1

*Abstract*
Copyright law's principal justification has for long been the theory of
creator incentives. Creators are presumed to be rational utility-maximizers
and therefore induced to create by the mere prospect of controlling a future
market for their yet-to-be-created works. Yet, current copyright doctrine
does surprisingly little to give effect to this theory. None of its
doctrines enable courts to circumscribe a creator's entitlement by reference
to the idea of incentives and the limitations inherent therein. As a
consequence, copyright's grant of exclusivity is presumed to extend to all
markets and uses for a work, whether or not they were capable of forming any
part of a creator's incentive. Limitless incentives thus translate into
unbounded entitlements.

Through its allocation of costs and benefits, the common law too relies on
providing actors with incentives to behave in certain ways. Unlike copyright
law however, the common law recognizes the existence of a clear outer limit
to its incentive structure and attempts to give effect to this limit through
the concept of "foreseeability". Premised on the idea that individuals are
incapable of cognitively processing consequences that are temporally or
causally far removed from their actions, foreseeability requires courts to
eliminate from the liability calculus certain low-probability occurrences
when they are unlikely to have influenced an individual's decision at the
time of action. Foreseeability thus represents a cognition-based doctrinal
limit to the behavioral modification that the common law attempts to induce.


This Article argues that if copyright law is to remain true to its theory of
incentives, it needs to pay closer attention to the way in which incentives
actually influence creative decision-making and internalize the idea that
creators, like actors elsewhere, are subject to cognitive imperfections that
in turn limit the effectiveness of incentives. To this end, it proposes a
test of "foreseeable copying" to limit copyright's grant of exclusivity to
situations where a copier's use was reasonably foreseeable to the creator at
the time of creation, the point when the incentive is meant to operate.
Adopting a test of foreseeability is thus likely to better align copyright
law with its underlying purpose and provide courts with a mechanism by which
to give effect to copyright's theory of incentives in individual cases -
thereby according it more than just rhetorical significance.

Keywords: Copyright, Incentives, Foreseeability, Bounded Rationality
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