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The incentives-for-authors formulation of copyright’s purpose is so deeply ingrained in our discourse and our thought processes that it is astonishingly hard to avoid invoking, even when one is consciously trying not to do so. Yet avoiding that formulation is exactly what we ought to be doing. Everything we know about creativity and creative processes suggests that copyright plays very little role in motivating creative work. In the contemporary information society, the purpose of copyright is to enable the provision of capital and organization so that creative work may be exploited. And the choice of copyright as a principal means of promoting cultural production has consequences for the content of culture as well.

This reframing has four important consequences for debates about copyright law and policy. First, abandoning the incentives-for-authors story requires us to talk about cultural progress differently. The incentives-for-authors story has functioned as a smokescreen, enabling scholars, judges, and legislators to conflate economic and creative motivation. Severing the motivational link between creativity and economics requires us to come up with a better understanding of how cultural progress emerges, and a more accurate account of how the economic incentives that copyright provides affect progress more generally. Second, an account of copyright as incentives-for-capital suggests a different approach to conceptualizing the kind of “property” that copyright represents. Copyright scholars habitually compare copyright to property in land, a conceptual move that passes over an important stage in the evolution of economic activity and associated economic rights. There are important benefits to be gained from comparing post-industrial, information property to industrial, corporate property, and copyright law more explicitly to corporate law. Specifically, copyright law in the post-industrial era works to separate authorship from control of creative works so that a set of coordination and governance problems closely associated with information resources can be solved. Third, comparing copyright more explicitly to industrial, corporate property and legal regimes governing its use suggests some different ways of thinking and talking about problems of social welfare that so often bedevil regimes of property law. Fourth, comparing copyright more explicitly to industrial, corporate property foregrounds copyright law’s (largely unrealized) potential to function as a tool for ensuring accountability to the authors without whom the copyright system could not function.

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Wisconsin Law Review (forthcoming, 2011)