Copyright as Contract: Part 3

I have been wandering and wondering about the notion of copyright as contract. The last time up, I discussed the consideration requirement. The availability of the work for limited use for life plus 70 and then free use in exchange for exclusivity. It’s hardly a perfect fit if one goes by the bargain theory of contract formation. There are many works created without a second thought to copyright. We could call them gratuitous works.

In any case, if the analogy fits, what would constitute a breach?  This gets harder. It cannot really be an infringement unless one views the infringing party as one of the principals who, acting through the government, promised exclusivity. I suppose that is possible. It is pretty clear that it is a breach  when an author promises (by virtue  of claiming copyright protection)  to deliver on something with a  modicum of creativity but fails to do so.  Thus, there would be a breach when someone casually attaches copyright notice to something that is not copyrightable or when, in an infringement action, the author fails because he or she did not produce a work that is copyrightable or  not  protected by copyright for other reasons.  

I am not sure where any of this is taking me but I’m having fun.

All comments are welcome.