The paper addresses the issue of who pays for the cost of creating artistic works and other forms of intellectual property. It examines the effect of current legal structure on regulatory performance in markets for intellectual property; specifically the effects of sequential and partial regulation. These entail the regulation of multiple market intellectual property on a “market-by-market” basis (sequential regulation) where the performance in other markets for the same intellectual property is taken as given (partial regulation). The analysis demonstrates that this form of regulation is sub-optimal and creates an incentive for copyright and antitrust laws to be employed strategically by consumers, firms and regulators. In particular, it creates an incentive to use domestic regulation as an international strategic device. The theoretical exposition is augmented by an analysis of two regulatory decisions relating to the US market for music performance rights which reflect the strategic implications of partial and sequential regulation.
