A Property Rights Theory of the Limits of Copyright

Abstract

The standard view is that copyright law should seek to strike the correct balance between providing incentives to create works and encouraging their dissemination. This article argues that this goal does not, and cannot, explain most aspects of copyright doctrine, because the information necessary to strike this balance correctly is not available to the courts. This article argues that rather than attempting an optimal allocation of rights, the main task of copyright law should be to ensure that property rights are clearly defined. This theory is then applied to explain the idea / expression dichotomy in copyright law; the different roles of copyright and patent law; and to the question of copyright in facts.