A Guide for Students and Teachers
Elgar original reference
Edited by Richard Watt
Chapter 14: Law and economics of copyright remedies
Economists have produced an impressive body of work on copyright, particularly in the past 25 years. Copyright term, treatment of derivative works, fair use, the types of works that are protected, and the consequences of various infringing practices have all attracted a great deal of attention. In contrast, economists have paid relatively little attention to the penalties imposed on infringers and the compensation available to copyright owners whose rights have been infringed. The prevailing interests are understandable; compared to the decision to include or exclude a class of creative work under the copyright umbrella, for example, the matter of remedies may seem rather small. Further, most remedies are transfers, or as we often turn the phrase, mere transfers. Nevertheless, neglect of copyright remedies is a mistake. In an important sense, the right is in the remedy. Weak remedies for infringement result in weak rights. Overly strong remedies can result in copyright laws that undermine their desired effects by raising the cost of creation and deterring some uses of creative works. Also, many court cases focus on remedies rather than liability, because copyright infringement is often easy to identify and demonstrate. Finally, as we will see below, differences in the courts’ application of remedies can, in common instances, result in order-of-magnitude differences in awards.
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