Authorship as Public Address: On the Specificity of Copyright vis-à-vis Patent and Trade-Mark
34 Pages Posted: 3 Jun 2008 Last revised: 4 Jun 2008
This paper develops the proposition that authorship in copyright law is a mode of public address. The paper unfolds two central implications from the concept of authorship as public address. One is that copyright is less an exclusive right of reproduction than an exclusive right of public presentation. Copying for personal use, for example, falls outside the purview of an author's copyright. The other is that what we know as fair dealing in Canada or fair use in the U.S. is less an exception to copyright infringement than a user's right unambiguously integral to copyright law. Once reproduction is no longer grasped as the core of copyright, the uses involved in fair dealing or fair use no longer appear as prima facie infringements to be excused by appeal to considerations external to that core. Fair dealing or fair use are not mere exceptions but rather user rights constitutive of copyright. On this basis, the paper formulates the specificity of copyright vis-à-vis patent and trade-mark. As regards the distinction between patent and copyright, the paper argues that whereas patentable inventions are modes of manipulating nature (i.e. human productions found in the technological space between self and world), works of authorship are modes of communication addressed to others (i.e. human productions found in the cultural space between persons). As regards the distinction between trade-mark and copyright, the paper argues that while works of authorship share with trade-marks the characteristic of being addressed to others, works of authorship are modes of communication addressed to others that, unlike trade-marks, invite and elicit dialogic responses from these others. The paper broaches the specificity of copyright by developing a reinterpretation of the legal test for copyright infringement, offering thereby novel approaches to the legality of copying for personal use, of Internet browsing and caching, and of certain unauthorized uses of copyrighted works affixed by copyright holders to consumer goods as trademarked logos.
Keywords: copyright, fair use, fair dealing, personal use, infringement, Kant
Suggested Citation: Suggested Citation