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Making authors the masters of their own destiny has long been a stated aspiration of copyright. Yet more often than not, the real subjects of American copyright are distributors – book publishers, record labels, broadcasters, and others – who control the rights, bring the lawsuits, and take copyright as their "life-sustaining protection." Much of modern American copyright history, and particularly its legislative history, revolves on distributors either demanding more industry protection or fighting amongst themselves. It is distributors who make the great financial investments in copyrighted works, and distributors who arguably most need the incentives and protections that the system is designed to provide.

What then is the distinct role, if any, of the author in the copyright system? Why have an authorial copyright – a copyright that vests rights in authors? Here I suggest a new defense of authorial copyright. The reason is to encourage not just writing, but the invention of new types of writing. Stated otherwise, authorial rights may help support not just competition in the market, but for the market. Such rights, I argue here, can act as a means of seeding new types of creative works, as well as new modes of producing creative works, and new entrants into dissemination. On the aggregate, giving rights to authors can make the monopoly-prone creative industries more decentralized and open to market entry.


Intellectual Property Law | Law