Copyright as Tort

Theoretical Inquiries in Law, 2010

34 Pages Posted: 5 May 2010

See all articles by Assaf Jacob

Assaf Jacob

The Interdisciplinary Center Radziner School of Law

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: May 3, 2010

Abstract

In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law.

Keywords: copyright, tangible property, tort paradigm, strict liability, negligence, absolute liability

Suggested Citation

Jacob, Assaf M. and Dorfman, Avihay, Copyright as Tort (May 3, 2010). Theoretical Inquiries in Law, 2010. Available at SSRN: https://ssrn.com/abstract=1599440

Assaf M. Jacob

The Interdisciplinary Center Radziner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel
972-9-9527280 (Phone)
972-9-9568605 (Fax)

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

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