In this extensive and extremely thorough piece, Breyer made several points:
That the only defensible justification of copyright is a consequentialist economic balance between maximising the distribution of works and encouraging their production.
That there is significant historical, logical and anecdotal evidence which shows that exclusive rights will provide only limited increases in the volume of literary production, particularly within certain sections of the book market.
That there was limited justification for contemporary expansions in the scope and duration of copyright.
"The Uneasy Case for Copyright" was a profound challenge to copyright expansionism, which was just entering its modern phase, and was still largely unquestioned in Northern countries.
There was a formal reply by a law student, Barry W. Tyerman, in the UCLA Law Review, and a rejoinder by Breyer, but the article appears to have had little impact on copyright policy in the lead up to the 1978US copyright revisions.
It did, however, become one of the most widely cited skeptical examinations of copyright, and it remains unsurpassed as a fundamental text in the critical study of intellectual property laws.
References
Stephen Breyer. (1970). The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs. Harvard Law Review84 (2), 281–355.
Stephen Breyer. (October 1972). "Copyright: A Rejoinder". UCLA Law Review20, 75–83.
Barry W. Tyerman. (June 1971). "The Economic Rationale for Copyright Protection for Published Books: A Reply to Professor Breyer". UCLA Law Review18, 1100–1125.
Copyright law only protects the particular form or manner in which ideas or information have been manifested, and is not designed or intended to protect the actual concepts, facts, styles or techniques which may be embodied in or represented by the ideas or information.
Copyright concepts are perceived to be under challenge in the modern technological era, from the increasing use of peer to peer filesharing, to the downward trend in profits for major record labels and the movie industry.
Another point of distinction is that a copyright (and a patent) is generally subject to a statutorily-defined fixed term, whereas a trademark registration may remain in force indefinitely if the trademark is periodically used and renewal fees continue to be duly paid to the relevant jurisdiction's trade marks office or registry.
Copyright is not primarily for the benefit of the author, but is primarily for the benefit of the public.
The copyright law makes reward to the copyright owner a secondary consideration, and the courts in passing upon particular claims of infringement must occasionally subordinate the copyright holder's interest in a maximum financial return to the greater public interest in the development of art, science and industry.
Copyright Except as otherwise provided in the conditions of the award, when publications result from work supported by the Public Health Service, the author is free to arrange for copyright without approval.
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