The contractual relationship between author and intermediary—be it a producer, publisher, or anyone facilitating the commercial exploitation of the author’s copyrighted works—is often viewed as an unequal one. Other than a minority of superstars, the vast majority of authors are forced to accept contractual terms dictated by their powerful counterparties. This outcome is perceived by many scholars and policymakers as undesirable. Thus, in an effort to protect the authors’ wellbeing in their contractual dealings, legislatures from around the world are increasingly keen to adopt regulatory measures that limit the menu of options the parties can adopt contractually. Specifically, these instruments endeavor to offset author’s weak bargaining position either by ensuring a minimum level of remuneration to authors’ ex-ante or providing them with an inalienable right to ask for a modification of the com-sensation stipulated in the contract ex-post or by granting them an inalienable right to regain control of their previously transferred rights. Overall, these legislative interventions are seemingly based on the assumption that regulating author-intermediary transactions ex ante and ex post will invariably improve the financial situation of authors as a whole. This assumption is mistaken.
Drawing on insights from neoclassical and behavioral economics, the benefits and drawbacks of these interventions are narrated throughout this paper. It is further demonstrated that while these legislative interventions were adopted with the best possible intentions, they ultimately prove ineffective in meeting their own objective of securing authors a more favorable distribution of wealth. In fact, they occasionally harm the very group of beneficiaries they were designed to help. Particularly, the different forms of interventions into the author-intermediary contractual relationships create an inter-author redistribution of wealth and redistribution over time, which largely harm the most vulnerable groups of authors. These findings illustrate the limitations of the current legislative interventions that were designed to strengthen the position of authors vis-àvis their counterparties and emphasize that the structural disparities in bargaining powers cannot be easily remedied by legal intervention alone.
THE COST OF COERCION: IS THERE A PLACE FOR “HARD” INTERVENTIONS IN COPYRIGHT LAW?,
Nw. J. Tech. & Intell. Prop.