Introduction: the law-and-economics of copyright

Anne Barron's chapter offers a provocative and insightful discussion of the law-and-economics (L&E) perspective on copyright law. Although I am an economist, I largely share her views on the limits of L&E analysis in this field. I also share her concerns about the expansionist tendencies of some contemporary copyright regimes. Therefore I see my main role in what follows as attempting to elaborate and extend her critique, particularly of the so-called ‘absolute protection paradigm’. However, in the nature of a scholarly commentary, I begin by noting two points of disagreement, even though they are of minor importance compared to our shared concerns about L&E as an engine of copyright expansionism.

Although L&E analysis of copyright is problematic, Barron wrongly assumes her objections extend to economics more generally, and therefore concludes that Frischmann and Lemley's critique of the absolute protection paradigm fails. She complains about their ‘lingering adherence’ to economic theory, and seems to imply Frischmann goes astray because ‘he stops short of a wholesale rejection of economic theory’. What kind of economic theory does Barron have in mind for wholesale rejection? Barron only goes into details in a passage outlining a ‘vision of the social order … that animates economic theory’. Her summary of mainstream neoclassical economics is accurate, although many contemporary economists do not share this perspective. But even among those who do, few would recognize the normative status Barron attributes to economic theory.