This paper has been published in the Duke Law Journal. The Citation is 52 Duke L.J. 683 (2003).

Many copyright doctrines serve to exclude from the copyright regime cases particularly prone to evidentiary complexity. The implicit logic is that for these cases the social costs of litigation would likely outweigh the social benefits derived from offering copyright protection in the first place. Doctrines that serve this evidentiary function include some doctrines where an evidentiary purpose is readily apparent, for example the requirement that eligible works be fixed in tangible form, and some where the link is quite subtle, for example the rule against protecting work that lacks creativity. Understanding these doctrines in this light helps to refine their proper scope and application. It also makes clear a problem facing copyright law more generally: the increasing divergence between the logical justifications for various copyright doctrines and their actual use by courts and commentators.

Under current rules, a television broadcaster is presumed to satisfy its obligation to air educational programming as long as it offers an average of three hours of self-described “educational” content each week.  I propose replacing this toothless presumption with one under which a broadcaster would be deemed to satisfy the obligation only if the broadcaster donates, in cash, to a qualifying educational nonprofit, the aggregate economic value of three weekly hours of television airtime.  The idea is to address an inconsistency that has undermined the traditional approach since its inception: the rules require broadcasters to air educational television because market forces would not otherwise create an adequate incentive for them to do so, but the same rules then rely on market forces to discipline broadcasters as they determine which programs are sufficiently “educational” in substance.  My proposal, by contrast, would strip unmotivated broadcasters of creative control, cash them out, and move the money instead to motivated nonprofits.  The burden placed on broadcasters would be the same as it is today; either way, the real cost to broadcasters is the lost opportunity to earn revenue on three hours of more profitable programming.  But the value created would be substantially more.  Broadcasters, in short, would no longer be told to provide educational television; they would simply be told to pay for it.