Tor and Oliar (2002)
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Source Details
| Tor and Oliar (2002) | |
| Title: | Incentives to Create Under a Lifetime-Plus-Years Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft |
| Author(s): | Tor, A., Oliar, D. |
| Year: | 2002 |
| Citation: | Tor, A., & Oliar, D. (2002). Incentives to Create Under a Lifetime-Plus-Years Copyright Duration: Lessons from a Behavioral Economic Analysis for Eldered v. Ashcroft. Loy. LAL Rev., 36, 437. |
| Link(s): | Definitive , Open Access |
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| Linked by: | Tor and Oliar (2002) |
| About the Data | |
| Data Description: | Participants in the study rated how attractive they found two alternative streams of future payments, assuming the life expectancy for individuals of their sex and age were to live another forty-five years.
The details of the study are reported elsewhere, as part of a larger study. (Avishalom Tor & Dotan Oliar, Introducing a Behavioral Approach to Copyright Law: Behavioral Economic Analysis and Experimental Tests of Alternative Duration Regimes (May 10, 2002)) |
| Data Type: | Secondary data |
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| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to individual authors is socially desirable, a lifetime-plus-years rule is a more effective legal means of accomplishing this goal than a rule based on a fixed term of years of a comparable expected duration.
Main Results of the Study
- The behavioral efficacy of a lifetime-plus-years regime does not apply to the Copyright Term Extension Act (CTEA), which merely extends the years component of an already existing lifetime-plus-years rule.
- Drawing on empirical findings on intertemporal choice, as well as our preceding analysis of the lifetime-plus-years regime and our own experimental tests, we determine that the CTEA's prospective extension provides negligible additional incentives to individual authors.
- The extension is unjustified on incentive-provision grounds, a finding of relevance to the Court's determination in Eldred v. Ashcroft of the constitutionality of the CTEA under the Copyright Clause.
Policy Implications as Stated By Author
We hope our analysis will alert legal scholars who study those numerous constitutional doctrines that seek to impact individuals' conduct, to the important, yet unexplored, role that behavioral insights can and should play in these constitutional domains.
