Vanderbilt Law Review

First Page



For the past three centuries, defining the appropriate scope of copyright has entailed an examination of incentives and access.' Broadening the scope of copyright increases the incentive to produce works of authorship and results in a greater variety of such works. Broadening copyright's scope, however, also limits access to such works both generally, by increasing their price, and specifically, by limiting the material that others can use to create additional works. Given these competing considerations, defining copyright's proper scope has become a matter of balancing the benefits of broader protection, in the form of increased incentive to produce such works, against its costs, in the form of lost access to such works. Congress, courts, and commentators have purported to rely on this incentives-access balance in defining some of copyright's most basic parameters, including the prerequisites for copyright protection, the general scope of protection, and specific limitations on protection. Despite its enduring and widespread popularity, however, the incentives-access paradigm is fundamentally flawed. Whether evaluated in terms of its own framework of costs and benefits, or more importantly, in terms of the actual costs and benefits that copyright imposes, the paradigm fails to define the appropriate boundaries for copyright protection.

On its own terms, applying the paradigm's suggested balance for any given work leads to an internal paradox. As a general proposition, a work's desirability will indicate both the need to ensure the work's creation and the need to secure its widespread distribution. The more desirable a work is, the greater the need to ensure the creation of the work and the greater the need to secure its widespread dis- semination. If the need to ensure a work's creation suggests a broad copyright, while the need to secure its widespread dissemination suggests a narrow copyright, then incentive and access will always oppose each other with exactly equal force. As a result, if the incentives-access balance were the sole criterion for determining the proper degree of copyright protection, it would provide an indeterminate answer as to how much protection copyright should provide.