The Author's Rights in Literary and Artistic Works
Mississippi College School of Law
June 30, 2009
John Marshall Review of Intellectual Property Law, Forthcoming
This paper suggests that authorship and creativity, which necessarily precedes the production of literary and artistic works, are products of authentic human expression that the law must encourage in order for works, contributing to the progress of science and the useful arts, to be produced. While the commercial market for literary and artistic works encourages the creation of diverse works to meet popular consumer demand, encouraging the production of works for the commercial market may however result in works, which may lack social, educational and cultural value or utility. Natural law philosophy, which advocates a natural order for society and the actions of men, has a lot to teach about the copyright system as a larger ethical and moral institution to promote the progress of society through the process of authentic authorship. The unique nature of creative works as quasi-public goods, which are not rivaled in consumption and generally non-excludable, requires the grant of exclusive rights to facilitate public dissemination of these works but the special role individual authorship and creativity plays in the production of these works render the rights of an author in the product of their creation as larger, and more encompassing, than the statutory economic incentives to publicly disseminate work. The author's reasons for creating a work may differ remarkably from his incentive to publicly distribute the work. While economic incentives offer authors market rewards that may facilitate the creation and dissemination of literary and artistic works, 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's creation, which originating from an author undertaking of the act of creativity and authorship, is a right to the author's literary and artistic creation that is good against the world, and, which, if protected, will result in authentic expressions of greater significance upon the progress of science and the useful arts in society.
Number of Pages in PDF File: 41
Keywords: Authorship, copyright, property rights, economic incentives
JEL Classification: D63, K11, O31, O34
Date posted: July 2, 2009 ; Last revised: July 16, 2009
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