Creative Copyright for Creative Business
| Autor | Hiram A. Meléndez-Juarbe |
| Cargo | Associate Professor University of Puerto Rico Law School. J.D. University of Puerto Rico Law School, 2000; LL.M. Harvard Law School, 2002; LL.M. NYU Law School 2008; J.S.D. Candidate NYU Law School |
| Páginas | 137-147 |
137
CREATIVE COPYRIGHT FOR CREATIVE BUSINESS
NOTE
HIRAM A. MELÉNDEZ-JUARBE*
I. Copyright as incentives vs. copyright for its own sake .................................... 137
II. Thinking Creatively: Tra nscending the Locksmith ........................................ 144
HAT DOES IT MEAN TO THINK CREATIVELY ABOUT CREATIVE INTELLEC-
tual assets in a digitally networked environment? How do we
conceive of copyright law in the face of consumer cultures that
expect flexibility in the use of copyrighted works and the ability to share creative
digital goods? How should we approach copyright enforcement, licensing, and
business designs in light of value created by users of intellectual works?
In this short essay, prepared for the inaugural issue of the University of
Puerto Rico Business Law Journal, I will argue that the intuitive attitude that
dominates copyright law, practice and advocacy may, in some occasions, be an
obstacle to developing successful business enterprises in the creative fields. I
present these views, not with specific prescriptions about how to design business
models, but to generally challenge the idea that flexible and liberal views about
copyright law are necessarily anathema to successful commercial ventures in the
current milieu.
I. COPYR IGHT AS INCENTI VES VS. COPYRIGHT FOR IT S OWN SAKE
Traditional economic justifications for intellectual property start from the
assumption that—unlike tangible property—information products are public
goods subject to free riding which, consequently, risks underproduction.1 The
* Associate Pr ofessor University of Puerto Rico Law School. J.D. University of Puerto Rico Law
School, 2000; LL.M. Harvard Law School, 2002; LL.M. NYU Law School 2008; J.S.D. Candidate NYU
Law School. Contact information at www.elplandehiram.org/write.
Some Rights Reserved. This Work is licensed under a Creative Commons Attribution Non-
Commercial 3.0 Puerto Rico License. You may find a copy of this license and an explanation of your
usage rights and duties here: http://creativecommons.org/licenses/by-nc/3.0/pr/
1 That is, they are non-excludable and non-rival, therefore, one could not exclude others from
using an idea once made available; consumption by one does not prevent consumption by others.
Because of the inability to exclude others, it is thought that a producer of intellectual works will not
be able to recoup fixed costs of creation, hence, the idea will not be produced in the first place. See
WILLIAM LANDES & RICHARD POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 12-13
(2003); COOTER & ULEN, LAW AND ECONOMICS 124-42 (2008). To address this problem and incentive
W
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