Jurisprudence of Private Property & Fair Use
NYAYIK DHWANI, Morang Bar Association Nepal, Vol 1, Page 22-38.
16 Pages Posted: 21 May 2014 Last revised: 22 May 2014
Date Written: November 16, 2012
"What is common to many is taken least care of, for all men have greater regard for what is their own than what they possess in common with others".
Aristotle (384–322 BC) [cited after Gwartney, 1991, p. 67]
Private property rights form an open-ended bundle of rights to possess, to use, to benefit from and to dispose of valuable and scarce assets (freedom of contract). Property rights establish protected and widely respected rights of ownership. They allow, in the first instance, "passive use", namely the right to exclude others from access to and possession of the assets, unless the owner consents to grant them such rights. Secondly, they encompass rights of autonomous "active use" — to combine the asset with the property of others in pursuit of expected gains and to appropriate the gains that accrue. This is done through voluntary private contracts, which are concluded only when both parties expect mutual benefits from the transaction. Copyright law confers upon the owner of the work a bundle of exclusive right in respect of the reproduction of the work and other acts which enables the owner to get financial benefits by exercising such rights. The mere use of a copyright work was not to be equated with "infringement" of that work. A copyright is infringed only if the use to which the copyrighted material is put falls within the "rights" that are made "exclusive" to the holder of the copyright by the term of the statute but the use of the copyrighted material on the grounds of "fair use" would not necessarily amount to copyright infringement. Each advance stands on building block fashioned by prior thinkers. "The world goes ahead because each of us builds on the work of our predecessors. Dwarf standing on the shoulders of giant can see further than the giant himself." Locke tells us that in the state of nature there is no positive law parceling out ownership or giving any particular person the right to command anyone else. There are, however, moral duties that constrain persons' behavior toward each other. The main focus of this article is to highlight the conflict between fair use on copyright and private property. Thus to explain further we would be dealing with the jurisprudence of private property (including copyright) and fair use of such private properties.
Keywords: Private property, rights, fair use, copyright, infringement, ownership, possession
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