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Cardozo Arts & Entertainment Law Journal

Abstract

Authors and intermediaries seldom enjoy equal bargaining power. This disparity-as well as information asymmetries-has been claimed to significantly undermine authors' ability to capture a fair share of the wealth generated from their creative efforts and contributions, thereby possibly reducing their incentive to create expressive works and compromising the myriad other benefits that copyright protection is meant to provide. To address this problem, legislatures have adopted soft paternalistic interventions designed to improve authors' choices without applying a hard-handed approach. Such interventions benevolently push the author away from risk or encourage her to make decisions that the legislator perceives to be in her best interests. Combining insights from neoclassic economics and behavioral economics, as well as anecdotal evidence and data, this paper demonstrates that because authors are overwhelmed by information and susceptible to various cognitive limitations and biases, many are unwilling or unable to expend the time and effort needed to comprehend the implications of the information these soft paternalistic interventions provide, much less incorporate it into their decision-making. Hence, these interventions generally fall short of achieving their legislative goal and may, in fact, harm the very group of beneficiaries they were intended to benefit. These findings prompt a re-thinking of this type of legislative intervention into the author-intermediary contractual relationship.

Disciplines

Comparative and Foreign Law | Contracts | Entertainment, Arts, and Sports Law | Intellectual Property Law | Law | Law and Society

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