39 Pages Posted: 18 Apr 2011
Date Written: 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.
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