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This chapter summarizes the contents of the book and attention is drawn to the appendixes in the book, which introduce many documents and correspondence previously unavailable in the public domain. The issue of authenticity is addressed and it is suggested that in the future research in this study may assist a worthy craftsperson to produce a more authentic Bartók Viola Concerto, when the restrictions of copyright will allow the freedom of musical expression. It would require a composer thoroughly steeped in Bartók's compositional style and technique, who would dare to add both vertically and horizontally, to recompose, to revise, and to continue to refine the texture and orchestration until the result was consistently representative of Bartók at the height of his creative powers.

This concluding chapter synthesizes the benefits of treating the IP and antitrust laws together in seeking to foster innovation. It recounts the wide swath of the economy and expanse of cutting-edge innovation topics covered by the proposals. It shows how the recommendations rescue Congress's intent, and recaps the nuance and practical nature of the proposals. It underscores the global appeal of the topics and analysis of the laws of Australia, China, the EU, India, Japan, and Korea. Finally it shows how the book seeks to carve out a greater role for innovation in copyright, patent, and antitrust law.

The federal copyright that the Framers envisioned and enacted was a narrow, short‐term right in printed matter. Current copyright holders enjoy a capacious bundle of rights in many more uses of many more types of published works for a far greater time and with fewer preconditions. Yet, until recent decades, copyright law's basic contours still evinced an understanding of copyright as a decidedly limited grant. It has been largely since Congress enacted the Copyright Act revision of 1976 that copyright's scope and duration have burst from their moorings, growing with unwonted precipitousness and force. This chapter details the most troublesome areas of copyright's expansion and conceptual metamorphosis from narrow government grant to Blackstonian property right. It discusses copyright duration, creative appropriation, the turgid waters of the substantial similarity test and the idea/expression dichotomy, the constriction of fair use, “paracopyright,” technological protection measures, personal uses, and new media.

This chapter examines more precisely when and how copyright does—and does not—burden speech. We can divide copyright's speech burdens into three distinct, yet interrelated categories. First, copyright imposes a “censorial” speech burden. Because of copyright, speakers are often unable to convey their message effectively and audiences unable to obtain access to certain expressive works. Second, copyright imposes a “prohibitive cost” speech burden. Even a copyright owner who is willing to license sometimes insists on a license fee a particular speaker can ill afford. Third, copyright results in a “distributive” speech burden. The copyright regime as a whole imposes differential burdens on different types of speakers. Highly concentrated copyright industries controlling vast inventories of copyrighted works enjoy the preponderance of copyright's benefits. And copyright's free speech burdens fall most heavily on individuals and independent speakers. While some aspects of copyright's speech burdens are quite straightforward, others are surprisingly complex.

This chapter explores the role of intellectual property rights in the process of soft innovation, and the extent to which the standard analysis is appropriate and can provide insight or requires modification. Analysis usually applied to patents is extended to copyrights, trade marks and design rights. The functioning of the UK (and European) IPR system is also discussed, as is the benefit of contestable markets.

This chapter takes a macro economic view and attempts to provide some feel for the extent of such innovation in the economy as a whole and the economic activities built upon it. At the macro level, indicators of soft innovation include the numbers of creative employees in different sectors, the extent of design activity, and head counts of copyrights and registered trademarks. The difference between the latter and indicators of R&D spending is considered as potentially the most useful on account of both concept and data availability. It is shown that that the extent of soft innovation in the creative and other industries is extensive, probably greater that that indicated by measures of formal R&D activity, and also growing faster than TPP activity. Across industries, the apparent balance in innovative effort between sectors after taking account of soft innovation is also shown to be much more even than reliance upon measures of TPP innovation alone would suggest.

The United States Supreme Court has famously labeled copyright “the engine of free expression.” Copyright, indeed, both spurs creative production and underwrites a community of authors and publishers who are not beholden to government officials for financial support. But copyright has strayed from its traditional, speech‐enhancing core, so much so that copyright now imposes an unacceptable burden on the values that underlie First Amendment guarantees of free speech. Copyright has come increasingly to resemble and be thought of as a full‐fledged property right rather than a limited federal grant designed to further a particular public purpose. The copyright‐free speech conflict cuts across traditional and digital media alike. Yet digital technology adds a vast new dimension, pitting entertainment media bent on stamping out massive “digital piracy” against individuals who increasingly perceive copyright as an undue and unworthy impingement on their liberty and expressive autonomy.

For some, copyright's speech burdens are painfully obvious. But many others do not perceive that copyright poses any serious conflict with freedom of speech.

This Chapter presents some illustrative examples that ought to at least give doubters some pause. They range from speech that is overtly political to purely artistic, from fantasy to documentary, from discrete cases to entire expressive genres, from religious tracts to counterculture comics, from analog to digital, from out‐and‐out copying to highly creative recasting, from new creation to Google search tool, and from copyright holders' calculated suppression of unwanted expression to speakers' inability to pay the copyright license fee that was offered. They demonstrate that copyright may indeed prevent us from effectively conveying a message, pursuing deeply held beliefs, expressing artistic inspiration, participating in a cultural tradition, or, for that matter, promoting “the progress of science.”

When does someone's inability to copy, distribute, or build upon a copyrighted work rise to the level of a burden on free speech? When, in contrast, should we readily countenance the restraints that copyright imposes? To answer, this chapter begins with more fundamental questions: What counts as “speech” for purpose of “freedom of speech”? And what free speech principles apply to copyright? This chapter demonstrates that copyright law is an integral part of media and communications policy. It also argues that the important First Amendment value of “expressive diversity” requires a dispersal of communicative power and ample opportunity for speech that directly challenges mainstream culture and popular works. Creative appropriation, the ability to convey one's message and artistic vision by incorporating and building upon mass media sounds and images, thus lies at the heart, not the margins, of freedom of speech. But peer‐to‐peer file sharing is not “speech.”

The Supreme Court has labeled copyright “the engine of free expression.” Copyright serves in that role in three fundamental ways. First, copyright serves a “production function.” It provides an economic incentive for the creation and dissemination of original expression. Second, copyright has an important “structural function.” It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence. Third, copyright has an “expressive function.” By encouraging authors, it reinforces the social and political importance of individuals' new, original contributions to public discourse.

This chapter argues that copyright continues to underwrite free speech through each of its production, structural, and expressive functions. Yet the chapter also qualifies copyright's “engine of free expression” moniker. Copyright's support for free speech is far more complex and, in some ways, more limited than the Supreme Court's often‐cited paean suggests.

Some scholars and policy makers claim that an expansive, proprietary copyright not only imposes merely trivial speech burdens but, indeed, represents the best means for resolving the tension between copyright and free speech. As Paul Goldstein forcefully puts it: to extend copyright “into every corner where consumers derive value from literary and artistic works” is the “best prescription for connecting authors to their audiences.”A broad, proprietary copyright, Goldstein argues, would thus “promote political as well as cultural diversity, ensuring a plenitude of voices, all with the chance to be heard.” This chapter takes on that “propertarian” counter‐argument. It demonstrates that broad copyrights do not, in fact, facilitate expressive diversity. It does so on the basis of copyright economics and by distinguishing between product differentiation and expressive diversity.

Copyright law's potential for abridging speech has long been recognized in United States case law, legislation, and commentary. Because of copyright, speakers are often unable effectively to convey their message and audiences are deprived of valuable expression. But courts have almost never entertained First Amendment defenses to copyright infringement claims. They have held that copyright's internet “free speech safeguards,” including fair use and the idea/expression dichotomy, provide adequate protection for free speech.

This chapter argues that courts should apply the First Amendment to cabin copyright holder prerogatives where necessary to protect speech. It then sharply criticizes the Supreme Court's rejection of a First Amendment challenge to the Copyright Term Extension Act in Eldred v. Ashcroft. Yet as the chapter notes, Eldred nevertheless suggests a couple of ways in which courts could reinvigorate copyright's internal free speech safeguards in light of First Amendment strictures.

Courts are not the only realm in which First Amendment values should come into play in defining and delimiting copyright. Concern over copyright's speech‐burdening potential should also animate Congressional legislation and Copyright Office regulation and arbitration. This chapter outlines a number of ways in which the Copyright Act could be modified to be more solicitous of speech while still preserving the copyright incentive's positive contribution to our “system of freedom of expression.”

The proposals tend toward narrowing copyright holders' proprietary entitlements—in some cases converting them to liability rules. But they do not all result in a net loss for copyright holders. In fact, the chapter proposes mechanisms for payment where today copyright holders receive nothing. The proposals cover copyright's extension to creative appropriation, copyright's inordinately lengthy term, the conflict between copyright and personal uses, the conflict between copyright incumbents and new media, paracopyright, and moral rights.

This chapter describes three types of intellectual property that have an impact on research and development: patents, copyrights, and trade secrets. It examines several views of the intellectual property system, including libertarianism, utilitarianism, Marxism, and contractarianism. To maximize the benefits and minimize the risks of protecting intellectual property, society should develop intellectual property policies that strike an appropriate balance between public and private interests.

This chapter on copyright laws in the 19th century covers legal sources of copyright, justifications and the evolving law, authorship and entitlement, infringing acts, the overall direction of Victorian copyright law, implementation of the Berlin Act, and Imperial Copyright Act.

London, New York, Paris, and Vienna became important musical centers as a consequence of the social and economic conditions that gave rise to an active concert life in each of them. The 19th century was an age of musical entrepreneurialism, and new markets for professionalism and commerce were created, such as blackface minstrelsy and music hall. Ticket prices were used to produce a class hierarchy of concerts. Cheap concerts were plentiful in the 1850s. The railways gave a boost to the music business. Women began to find professional musical employment, perhaps performing in a “Ladies' Orchestra” or, more often, becoming piano teachers. Alongside the promotion of public performances, music publishing and piano making were the most important musical enterprises of the new commercial age. Inevitably copyright and performing rights became crucial matters. This chapter argues that the status of popular music changed profoundly with the development of the music market.