The Business, Entrepreneurship & Tax Law Review


Brian L. Frye


In some countries, copyright gives authors a “right to withdraw” works they disapprove. While the United States has no right to withdraw, it does have a practical equivalent. Authors can simply stop publishing a work, and refuse to allow anyone else to publish it. Of course, existing copies will still circulate. Still, restricting the supply of a work can still help reduce its public profile. After all, out of sight, out of mind. But there’s a problem. The whole purpose of copyright is to encourage authors to create works of authorship for the public to consume. Indeed, the government uses copyright to pay authors to produce works. When authors refuse to publish works, they’re going back on the bargain. Of course, it probably doesn’t matter if authors refuse to publish works no one wants to consume anyway. But it’s more troubling if authors refuse to publish works consumers want, leaving money on the table. Sometimes, authors refuse to publish a work because it harms their brand. In any other market, they could just sell the product line to someone else. But attribution sticks like glue, so it’s rational for authors to prohibit publication, so long as the loss of potential profits is offset by gains in goodwill. The loser is the public, which pays a higher price for access to the work.

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