Copyright Paternalism

Kevin J. Hickey · 19 Vand. J. Ent. & Tech. 3

Abstract

The dominant justification for copyright is based on the notion that authors respond rationally to economic incentives. Despite the dominance of this incentive model, many aspects of existing copyright law are best understood as motivated by paternalism. Termination rights permit authors to rescind their own earlier assignments of copyright. The elimination of formalities protects careless authors from forfeitures of copyright if they fail to register the copyright or place appropriate notice on their works. The law limits how copyrights can be transferred, when rights in emerging media can be assigned, and which works can be designated as “made for hire” by contract. Thus, while the basic model of copyright presumes that authors are rational actors, many of its actual provisions suppose that authors are not capable of understanding or protecting their own economic interests. This Article highlights and seeks to understand the tension between these two different conceptions of the author.

Building on recent critiques of copyright’s incentive model and on the insights of behavioral law and economics, this Article envisions what a more unabashedly paternalistic copyright regime might look like. Such a view accepts that authors are not rational actors; they are shortsighted, lack bargaining power, and respond weakly to distant and uncertain economic incentives. If we take this account seriously, copyright’s existing paternalistic provisions are inadequate solutions to the behavioral failures that they purport to remedy. Instead, a truly paternalistic copyright regime would provide meaningful protections for authors against one-sided copyright transfers and would rely on more tailored and direct incentives for artistic creation.