Fromer, Jeanne C., An Information Theory of Copyright Law (September 23, 2014). Emory Law Journal, Vol. 64, p. 71, 2014. Available for download at SSRN: http://ssrn.com/abstract=2500614

“The dominant American theory of copyright law is utilitarian, in offering the incentive of limited copyright protection to creators to generate material that is valuable to society. Less settled is the question of the sorts of works that copyright law seeks to encourage: Ever more copyrightable creations? Only some that are artistically worthy? What makes a work valuable to society? This Article seeks to answer important aspects of these questions by examining them through the lens of information theory, a branch of applied mathematics that quantifies information and suggests optimal ways to transmit it. Using these concepts, this Article proposes that what makes expressive works valuable to society is that they make a contribution in at least one of two principal ways: by using that expression to communicate knowledge — be it systematic, factual, or cultural — and by conveying expression that is enjoyable in and of itself. Information theory sheds light on how copyright law can spur these valuable works. In undertaking this analysis, this Article explores the implications for the central doctrines of copyright law, including copyrightability, the idea-expression distinction, infringement, and fair use. In this context, this Article also considers whether we want distinct creators communicating these valuable types of information or whether it is optimal to unify particular communications of information in a single creator.”