Living in the Shadow of the Intangible: The Nature of the Copy of a Copyrighted Work
83 Pages Posted: 26 Nov 2010 Last revised: 27 Feb 2015
Date Written: October 7, 2010
Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. As copy ownership of copyrighted works is progressively vanishing through online digital distribution of copyrighted works, it affirms the significance of copy ownership within copyright and property law. This paper also looks at how potentially conflicting ownership rights of copyright holders and of copy owners should interact, and how they should limit one and the other. It founds the justifications of copy ownership on the a priori normative value of open ended ownership freedoms, as well as within the instrumental justifications of copyright, to incent the creation and dissemination of copyrighted works. It also applies the concept of property limitations in property theory to explain how copy ownership acts as a property limitation on copyright and vice versa. Viewed in this light, copy ownership is a right that needs to be mediated against the exclusive rights of copyright holders. The adaptability of the property institution allows the concept of copy ownership to evolve, taking into account the available control and access technologies at any given time. It provides important tools that may help resolve the ongoing controversy opposing the rights of consumers to the rights of copyright holders. The possible eradication of ownership of digital copies is not likely to resolve this conflict, unless it takes into account the underlying interests of consumers who lawfully access copyrighted works. The a priori normative force of ownership freedoms, the role of copy ownership in pursuing the instrumental goals of copyright, as well as the intrinsic transaction efficiency that results from it, incarnate a strong vehicle as well as a safeguard to consumers’ rights to copyrighted works.
Notes: This paper has been published in two separate articles (Part I and Part II) that are available on my SSRN author page.
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