The Uneasy Case for Copyright

"The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs," Harvard Law Review, vol. 84(2), pp. 281–355 (1970).

This is an article from the Harvard Law Review that was written by Supreme Court Justice-to-be Stephen Breyer in 1970, while he was still a legal academic.

In this extensive and extremely thorough piece, Breyer made several points:

• That the only defensible justification of copyright is a consequentialist economic balance between maximising the distribution of works and encouraging their production.
• That there is significant historical, logical and anecdotal evidence which shows that exclusive rights will provide only limited increases in the volume of literary production, particularly within certain sections of the book market.
• That there was limited justification for contemporary expansions in the scope and duration of copyright.

The Uneasy Case for Copyright was a profound challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in Northern countries.

There was a formal reply by a law student, Barry W. Tyerman, in the UCLA Law Review, and a rejoinder by Breyer -- but the article appears to have had little impact on copyright policy in the lead up to the 1978 US copyright revisions.

It did, however, become one of the most widely cited skeptical examinations of copyright, and it remains unsurpassed as a fundamental text in the critical study of intellectual property laws.

Aditional References

1. Tyerman, Barry W., "The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer", 18 UCLA Law Review, June 1971, pp 1100--1125.
2. Breyer, Stephen, "Copyright: A Rejoinder", 20 UCLA Law Review, October 1972, pp 75--83.