Abstract

http://ssrn.com/abstract=1474374
 
 

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From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law


Abraham Drassinower


University of Toronto - Faculty of Law

September 16, 2009

Journal of Corporation Law, Vol. 34, No. 4, pp. 991-1007, 2009

Abstract:     
Few propositions are more frequently asserted in contemporary copyright discussion than the proposition that copyright is a balance between authors and users - a balance (as some like to say) between the incentive to create and the imperative to disseminate works of authorship. This paper argues that the concept of balance cannot support the weight it is asked to bear in copyright jurisprudence, and that we should think of copyright less as a “balance” between authors and users than as a “dialogue” between authors and users. “Dialogue” is a metaphor more appropriate than “balance” to structure our interpretation of copyright law and of its purpose. The idea of dialogue presides over an interpretation of (a) copyright subject matter (i.e. the “work”) as a communicative act, (b) certain copyright exceptions as user's rights integral to the copyright system, and (c) the public domain less as a matter of values or weights to be placed on a balance, than as a site of, and condition for, a network of communicative acts in which both authors and users participate. In short, the point is that, at least in one of its fundamental determinations, the public domain is less a scope problem than a subject matter problem. Whereas the metaphor of balance orients contemporary copyright discussion towards a formulation of the public domain as a distributional scope issue, it would be more appropriate to deploy the concept of the work as a communicative act in order to characterize the public domain as a subject matter issue in dialogical terms. It is the commodification of the work, rather than the mere distribution of its commodified value, that is the fundamental obstacle in the way of a conception of the integral role of the public domain.

Number of Pages in PDF File: 17

Keywords: copyright, speech, communication, balance, value, public domain, originality, fair use, fair dealing, Kant

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Date posted: September 18, 2009  

Suggested Citation

Drassinower, Abraham, From Distribution to Dialogue: Remarks on the Concept of Balance in Copyright Law (September 16, 2009). Journal of Corporation Law, Vol. 34, No. 4, pp. 991-1007, 2009. Available at SSRN: http://ssrn.com/abstract=1474374

Contact Information

Abraham Drassinower (Contact Author)
University of Toronto - Faculty of Law ( email )
78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
(416) 978-4408 (Phone)
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