Posted: 4 Apr 2008
Date Written: December 2006
Copyright has traditionally and historically been viewed as a public domain containing discrete islands of propertization, but some today intuitively see it instead as a presumptive realm of propertization, in which there are some holes (non-propertization of ideas, facts, and functional modalities, and exceptions such as exhaustion and fair use). Taking this propertization perspective as its starting point, this article presents a proposal about the holes. The proposal suggests that the holes in copyright can be viewed as the solution to a coordination problem: firms desire to lock up all their own past information production but need access to information produced by others as inputs to their own future information production. Firms in this situation (hypothetically and perhaps in actuality) coordinate to achieve legislation allowing all firms some access to information produced by others. The proposal has the corollary that firms&apos' attempts to get around the holes in copyright can be seen as defection from the legislative solution.
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