ON THE FAIR DISTRIBUTION OF BENEFITS FROM WORKS FROM THE PERSPECTIVE OF LAW AND ECONOMICS

Abstract

The subject of the article are considerations regarding the optimal limits of protection of creators from the perspective of law and economics. The purpose is to show the economic reasons for protecting creators, resulting from the nature of the goods they produce, as well as the adverse consequences of a too wide scope of protection. The article is also going to present economic instruments that allow finding a balance between opposing rations, which is intended to maximize the social benefits of creative activity. The final aim is to confront the conclusions of the article with the jurisprudence of the Polish Constitutional Tribunal, in order to answer the question of whether the Tribunal's decisions take into account the assumptions of law and economics.

The article is based on an economic approach to the analysis of law. The analysis uses rational choice theory, game theory, efficiency criteria and other instruments from the area of microeconomics.

The analysis showed that the need for legal protection of authors results from the nature of their works that are quasi-public goods. Lack of such protection, in accordance with the assumptions of the theory of rational choice, has a demotivating effect on creators, contributing to a reduction in the number of creative initiatives. On the other hand, introduction of economic copyrights in order to protect the authors turns out to be a solution that implies low availability of goods and their high price, which in turn leads to a decrease in social welfare. Ultimately, it is reasonable to say that the purpose of intellectual property rights is to strike a balance between guaranteeing legal protection to authors and ensuring that the public has adequate access to works. The article also presented economic instruments in the form of efficiency criteria to solve the presented dilemma. Interesting conclusions emerged from the juxtaposition of law and economics assumptions with the jurisprudence of the Constitutional Tribunal. It turns out that in its case-law the Court does not follow any of the reasons presented by the economic analysis, and its decisions in the light of this analysis may be unfavorable to society.

The article presents an original approach to copyright using economic instruments. This approach allows for interesting conclusions that may be significant de lege ferenda and for judicial decisions.