Copyright and Contract

Abstract

Copyright is the most powerful and thus valuable of all the intellectual property rights. Copyright’s protection, however, is limited. It does not protect all works, and those works that it does protect are not protected fully. Insubstantial amounts of a work can be copied without infringing copyright; there are a myriad of defences; nearly all works can be sold, lent and hired without restriction; and, most importantly, copyright protection expires eventually. This article argues that copyright’s limitations are the product of a bargain struck between the public and copyright owners. The article explores the question of whether copyright owners should be able to use contract to upset this bargain and gain greater control over their works at the expense of the public. It deals with the compelling argument in favour of freedom of contract that users and copyright owners should be allowed to waive some of their rights if this would better reflect their commercial realities, by suggesting a legislative solution to allow this to occur. The ability to remould copyright law through contract law must be limited, however. To permit untrammelled freedom of contract would destroy the copyright bargain and allow the creation of a perpetual and all encompassing copyright.

Keywords: Copyright, Contract

JEL Classification: K1, K12, K19