Reverse Exclusion in Copyright Law - Reconfiguring Users' Rights

Guy Pessach

Hebrew University of Jerusalem - Faculty of Law; Yale University Law School - Affiliate Fellow, Information Society Project

April 17, 2011

Copyright law allocates entitlements in intangible cultural resources between copyright owners and users. Copyright owners have in-rem exclusive rights to do and authorize certain uses of copyrighted works, or otherwise phrased, the right to exclude the rest of the world from utilizing copyrighted works (for certain uses). Users' rights cover instances in which there is a default presumption according to-: users' free exploitation of cultural works is more beneficial than subordinating such uses to restrictions by copyright owners and by other third parties.

This article proposes to conceptualize users' rights as reverse exclusion rights. According to the reverse exclusion paradigm, people other than users hold a duty not to interfere with users' rights and not to impose restrictions that violate users' entitlements over certain uses and certain categories of cultural works. For example, unless authorized by users, technological protection measures that override the fair-use defense should be prohibited and classified as an infringement of users' rights. Similarly to a copyright infringement, a users' rights infringement should also be subjected to remedies of injunction and monetary damages.

The Article begins by establishing the paradigm of reverse exclusion through economic, public-regarding and other rationales. To a large degree, these considerations mirror rationales that traditionally justify copyright owners' exclusive rights. I then offer initial directions for integrating the paradigm of reverse exclusion into contemporary copyright law. The article concludes by demonstrating the contribution and significance of reverse exclusion through several case studies in which current concepts of copyright law and users' rights fail in achieving a socially desired equilibrium-: (1) access and usage restrictions through technological protection measures; (2) content removal in the shadow of notice and take-down procedures; (3) contracting around copyright, and (4) the fair use defense.

Number of Pages in PDF File: 39

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Date posted: April 18, 2011  

Suggested Citation

Pessach, Guy, Reverse Exclusion in Copyright Law - Reconfiguring Users' Rights (April 17, 2011). Available at SSRN: https://ssrn.com/abstract=1813082 or http://dx.doi.org/10.2139/ssrn.1813082

Contact Information

Guy Pessach (Contact Author)
Hebrew University of Jerusalem - Faculty of Law ( email )
Mount Scopus, 91905

Yale University Law School - Affiliate Fellow, Information Society Project ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States

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