Positive Copyright and Open Content Licences: How to Make a Marriage Work by Empowering Authors to Disseminate Their Creations

International Journal of Communications Law and Policy (IJCLP) Winter, Vol. 12, 2007

30 Pages Posted: 14 Oct 2007 Last revised: 4 Dec 2008

See all articles by Maria Lillà Montagnani

Maria Lillà Montagnani

Bocconi University - Department of Law; Ask Research Center; New York University School of Law

Maurizio Borghi

Bournemouth University - Centre for Intellectual Property Policy & Management (CIPPM)

Abstract

Positive copyright appears to have been progressively turned away from its normative function of ensuring a fair and efficient transmission of human knowledge. The private sector is seeking to counterbalance this phenomenon by adopting legal tools that expand the public domain of knowledge, such as web-based licences modelled on the open access approach. The increasing world-wide preference for Creative Commons licences confirms their aptness to transform copyright law into a tool flexible enough to serve authors' several purposes. Such a spontaneous counterbalance experiences many difficulties though, because of the structure that positive copyright has adopted over the last few years.

The current situation is an excellent point from which to look back at how authors used to disseminate their works before the advent of the Internet. From a historical view-point copyright has always accomplished the twin functions of economically rewarding authors and enabling communication of their creations to the public. The latter goal is achieved by means of statutory mechanisms limiting the freedom of contract between authors and their counterparts (intermediaries in a broad sense), in order to enforce the authors' capacity to publicise their works. In the current digital environment, however, these mechanisms are not likely to accomplish their original functions.

This paper seeks to explore an adjustment that will permit authors to take advantage of all the new means of commercial exploitation and non-commercial dissemination of their works offered by the Internet. Such an adjustment aims also at realigning positive and normative copyright by encompassing the use of open content licensing within the current copyright framework.

Keywords: copyright law, open content, licensing, freedom of contract, intellectual property, creative commons

JEL Classification: K33

Suggested Citation

Montagnani, Maria Lillà and Borghi, Maurizio, Positive Copyright and Open Content Licences: How to Make a Marriage Work by Empowering Authors to Disseminate Their Creations. International Journal of Communications Law and Policy (IJCLP) Winter, Vol. 12, 2007. Available at SSRN: https://ssrn.com/abstract=1020997

Maria Lillà Montagnani (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, 20136
Italy

Ask Research Center ( email )

via Roentgen 1
Milan, 20136
Italy

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Maurizio Borghi

Bournemouth University - Centre for Intellectual Property Policy & Management (CIPPM) ( email )

89 Holdenhurst Road
Bournemouth
Dorset, BH8 8EB
United Kingdom

HOME PAGE: http://www.cippm.org.uk

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