Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the environment to encourage authorship and cannot be undermined as social and technological environment changes in favor of a social goal. To do so would result in a disrespect for the institution that was established to ensure that authorship ultimately contributes to a larger social goal. As rights under copyright are taken seriously as trumps over social goals, we can then attempt to answer some of the more difficult questions within the legal institution, which is the extent rights should invade and affect social welfare on the part of the public. A three-tenet test is proposed to determine when a right under copyright should be abridged. The newly proposed treaty on the Protection of Broadcasting Organizations by the World Intellectual Property Organization is analyzed through the lenses of the three tenet test and this paper presents that the new proposed rights do not affect social welfare and should be acceptable

Literary Property and Copyright

Copyright laws emerged out of necessity when the earliest printing presses were introduced into the book trade. After the Statute of Anne codified an assortment of censorship, licensing, and trade-control rules to produce the world’s first copyright statute in 1710,1 it soon became clear in the United Kingdom and in the United States that all rights in creative works were provided by statute.2 Copyright laws have steadily expanded since the Statute of Anne to protect owners of creative works. In the past decade, attacks on these expansions by left-leaning critics have become visceral and intense. As copyright owners assert absolute property rights over creative works and critics argue that state interests operate to balance and limit statutory rights, perhaps the terms of this debate might be clarified through a determination of whether copyrighted material is property in a legal sense. If copyright is indeed property in a de jure sense, is it the same thing as “literary property”? If so, then copyright law provides copyright owners with the absolute right to own and control literary works in the same way that a natural property right provides real property owners with the perpetual, exclusive, and absolute right to own and control property to the exclusion of all others. The purpose of this Article is to explore the notion of literary property, to determine whether literary property may be equated with copyright, and, if so, to assess what the implications might be for modern copyright law as it adapts to newly emerging technological, social, and cultural trends

When Users are Authors: Authorship in the Age of Digital Media

This Article explores what authorship and creative production mean in the digital age. Notions of the author as the creator of the work have, since the passage of the Statute of Anne in 1710, provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author as both the creator and the producer of a work has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author\u27s rights in his creation, and provide the incentive to create. They also allow him to appropriate the social value that his creativity generates as recognition of his contribution towards society. By initially protecting the rights of authors in literary and artistic works as a property right, copyright laws have facilitated market transfers of private rights and directed use of these works toward the most socially beneficial uses. This Article proposes that in the digital age, when users of literary and artistic works are increasingly becoming authors themselves, the notion of authorship provides a mark of identification to connect the original author with the work in a market characterized by an abundance of derivative works and remixes of original content. The notion of authorship in the digital age attributes individual and collaborative contributions to the collective pool of information back to their respective authors. This Article proposes that the networked economy may be sustained in a world where digital technologies facilitate the free flow of information if good works of authorship are rewarded by attributing the original author, and authentic works of authorship by responsible authors become an expected norm. Recognizing authorship and protecting ownership rights in the digital age, where open platform technologies and peer production create a plethora, rather than a paucity, of literary and artistic works, are simple and cost-effective ways for the law to address this question of sustainability. The notion of authorship as a right of ownership in literary and artistic works acknowledges the moral and ethical components of communal and collaborative production. This Article suggests that recognizing authorship and protecting ownership rights in literary and artistic works in the digital age promotes, rather than restrains, creative activity

The Author\u27s Rights in Literary and Artistic Works

Authorship and creativity are products of authentic human expression that the law must encourage in order for works to be produced. The commercial market for literary and artistic works encourages the creation of diverse works to meet popular consumer demand. Focus on popular demand may, however, result in works that lack social, educational and cultural value or utility. Natural law philosophy suggests that the copyright system should be an ethical and moral institution that would, in turn, promote the progress of society through authentic authorship. While economic incentives offer authors market rewards that may facilitate the creation and dissemination, economic rights represent only a portion of rights, which the copyright system should recognize in the author. This paper makes the case for the recognition of property rights in the author\u27s creation, which originating from an author\u27s the act of creativity and authorship, is a right to the author\u27s literary and artistic creation that is good against the world, and, if protected, will result in authentic expressions of greater significance upon the progress of science and the useful arts in society

Copyright Law, the Production of Creative Works and Cultural Growth in Cyberspace

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, copyright law had been used to maintain control over existing information flows. The law has a pivotal role to play as the industries assert greater control over the flow of information in content. The role of copyright law in this instance is not to maintain the existing status quo as the industries undergo changes and loss of control over information flow in copyrighted works. Rather, the law serves a more fundamental purpose of balancing information flow between private and public interests. As the law was designed to encourage authors and artists to produce creative works for the public purposes of education, socio-economic and cultural growth, copyright law in the global information society plays an even more important role to ensure that society has access to information in copyrighted works

Copyright\u27s Empire: Why the Law Matters

Previous intellectual property literature demands a balance between incentives to produce for the creator of a work and access to information, knowledge, and content by the users. However, law and economics jurisprudence does not provide compelling arguments to support the notion that the copyright monopoly is the most efficient way to maximize public welfare by promoting the works of authors. The social cost from expansion of private rights is nonexistent because market structures change as technologies develop, providing society with increased accessibility to creative works. Accordingly, copyright laws need to expand as technology develops in order to realize a fair balance between private rights and public interests. The author focuses on the effect of technology on the accessibility of creative works and concludes that copyright law provides a balance between private rights and public interests that would not normally exist

Rights, Privileges, and Access to Information

Protecting property rights in creative works represents a classic institutional approach to the specific economic problems of nonrivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for educational purposes. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as emerging technologies provide users of creative works with greater access to informational goods. Despite the development of technologies that enable broad access, the result of expanding property rights in literary and artistic works has been higher access costs, which severely restrict society\u27s ability to access and use the information. This Article examines society\u27s claim to a right of access to information in order to further the constitutional goal of promoting progress, and proposes that the question of access to information is one of sustainable resource use that should not evoke the exclusionary rights of a strict property rule. Copyright laws protect economic privileges in information and govern society\u27s use of informational resources; however, they do not provide copyright owners with a general right to exclude socially beneficial uses of informational works. These laws are specifically tailored to increase social welfare, and must be distinguished from a property right to exclude others from use of a thing. Exclusionary property rights in creative works arise, if at all, to protect an author\u27s creative integrity, validate the importance of authentic authorship, and provide personal and moral incentives for authors to produce creative works of social value. Property rights and economic privileges, this Article proposes, encourage the production of informational goods and are necessary to ensure the advancement of science and the useful arts in accordance with the constitutional goals of the copyright system

Copyright Law, the Production of Creative Works and Cultural Growth in Cyberspace

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, copyright law had been used to maintain control over existing information flows. The law has a pivotal role to play as the industries assert greater control over the flow of information in content. The role of copyright law in this instance is not to maintain the existing status quo as the industries undergo changes and loss of control over information flow in copyrighted works. Rather, the law serves a more fundamental purpose of balancing information flow between private and public interests. As the law was designed to encourage authors and artists to produce creative works for the public purposes of education, socio-economic and cultural growth, copyright law in the global information society plays an even more important role to ensure that society has access to information in copyrighted works