BEYOND EFFICIENCY: CONSEQUENCE-SENSITIVE THEORIES OF COPYRIGHT.

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  • Author(s): Bracha, Oren; Syed, Talha
  • Source:
    Berkeley Technology Law Journal. Spring2014, Vol. 29 Issue 1, p229-316. 88p.
  • Document Type:
    Article
  • Additional Information
    • Subject Terms:
    • Abstract:
      A major development in the analysis of copyright in the last two decades has been the emergence of "democratic" theories of cultural expression, challenging the long-standing dominance in this field by normative theories of natural rights and economic efficiency. The central thrust of democratic theories is to emphasize the significance of the expressive activities regulated by copyright law not only for political life, but also for individual selfauthorship and robust engagement by persons in their surrounding culture, to take an active part in social processes of meaning-making. However, a major stumbling block facing democratic theories has been a lack of understanding, by both advocates and skeptics, of how democratic theories relate to rival views in terms of concrete implications for specific questions of copyright law and policy. In particular, democratic (and, as we show, distributive-equity) theories seem to share with economic analysis an attractive attentiveness to the consequential effects of copyright, in contrast to so-called "deontological" naturalrights views. Yet, by that same token, it has been unclear precisely when--and on what grounds--democratic theories offer distinct prescriptions from the one commended by economic analysis, which is to achieve an optimal balance between the maximal production and wide dissemination of expressive works valued by consumers. This Article contributes to the further development and reception of this emerging normative camp by clarifying its relationship to dominant rival views. Specifically, we seek to advance the sophistication and precision of democratic and distributive analyses of copyright in three respects. First, we offer a characterization of democratic and distributive theories as being, in their most attractive form, robustly "consequence-sensitive," and we bring out a crucial feature of these theories when conceived this way. So conceived, democratic and distributive theories share an important structural affinity with economic efficiency, which is that they must confront the possibility that an adjustment to copyright rules along one dimension may have countervailing repercussions along other dimensions. As a result of this structural affinity, democratic and distributive theories--surprisingly, given their invocation of different values--seem at first blush to align closely with economic analysis and its familiar incentive-access tradeoff. This sharply poses the challenge of identifying the stakes in the choice between these alternative outlooks. Our second aim is to respond to this challenge by specifying with greater precision than has yet been done how democratic and distributive values make a concrete difference in the context of particular policy questions. Third and finally, with the normative differences with efficiency so clarified, we are then faced with two tasks: justifying such departures from efficiency's beacon of maximal satisfaction of existing preferences and specifying how a consequencesensitive approach that adopts plural values is able to decide between conflicting values and outcomes, in the absence of reliance on the efficiency calculus. We explore these questions in the context of six concrete issues in copyright policy. [ABSTRACT FROM AUTHOR]
    • Abstract:
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    • ISSN:
      1086-3818
    • Accession Number:
      96521424
  • Citations
    • ABNT:
      BRACHA, O.; SYED, T. Beyond Efficiency: Consequence-Sensitive Theories of Copyright. Berkeley Technology Law Journal, [s. l.], v. 29, n. 1, p. 229–316, 2014. Disponível em: . Acesso em: 21 out. 2019.
    • AMA:
      Bracha O, Syed T. Beyond Efficiency: Consequence-Sensitive Theories of Copyright. Berkeley Technology Law Journal. 2014;29(1):229-316. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424. Accessed October 21, 2019.
    • APA:
      Bracha, O., & Syed, T. (2014). Beyond Efficiency: Consequence-Sensitive Theories of Copyright. Berkeley Technology Law Journal, 29(1), 229–316. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424
    • Chicago/Turabian: Author-Date:
      Bracha, Oren, and Talha Syed. 2014. “Beyond Efficiency: Consequence-Sensitive Theories of Copyright.” Berkeley Technology Law Journal 29 (1): 229–316. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424.
    • Harvard:
      Bracha, O. and Syed, T. (2014) ‘Beyond Efficiency: Consequence-Sensitive Theories of Copyright’, Berkeley Technology Law Journal, 29(1), pp. 229–316. Available at: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424 (Accessed: 21 October 2019).
    • Harvard: Australian:
      Bracha, O & Syed, T 2014, ‘Beyond Efficiency: Consequence-Sensitive Theories of Copyright’, Berkeley Technology Law Journal, vol. 29, no. 1, pp. 229–316, viewed 21 October 2019, .
    • MLA:
      Bracha, Oren, and Talha Syed. “Beyond Efficiency: Consequence-Sensitive Theories of Copyright.” Berkeley Technology Law Journal, vol. 29, no. 1, Spring 2014, pp. 229–316. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424.
    • Chicago/Turabian: Humanities:
      Bracha, Oren, and Talha Syed. “Beyond Efficiency: Consequence-Sensitive Theories of Copyright.” Berkeley Technology Law Journal 29, no. 1 (Spring 2014): 229–316. http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424.
    • Vancouver/ICMJE:
      Bracha O, Syed T. Beyond Efficiency: Consequence-Sensitive Theories of Copyright. Berkeley Technology Law Journal [Internet]. 2014 Spring [cited 2019 Oct 21];29(1):229–316. Available from: http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=cph&AN=96521424