The Idea of a Use RightAssociation of Law, Property & Society Annual Meeting (2010)
AbstractThe law of nuisance requires property law as a legal institution to balance and manage the utility of competing land use. When an intentional invasion of land creates an unreasonable and substantial interference with the use of another person’s land, the nuisance may be enjoined by law. This enquiry requires a consideration of whether the social utility of the tort-feasor’s conduct outweighs its social costs, and provides the courts with a legal strategy to manage conflicting resource uses. Copyright jurisprudence similarly requires management of society’s use of information as a resource for creativity and progress. The legal strategy employed to manage competing uses in the copyright system, however, differs substantially from the strategy employed by courts for nuisance cases in that the consideration of social utility and social cost of the tort-feasor’s conduct is replaced by an evaluation of market impact from society’s use of copyrighted works for the purposes of free expression and progress. This Article suggests that use rights for the copyright system must allow social uses of information as a resource to encourage diverse forms of authorship and creative activity. The rights provided under the copyright act facilitate a production and dissemination function, and by emphasizing market impact in the fair use analysis, the copyright system undermines the institutional role of property law to protect the author, and encourage creative activity and authorship for the purposes of progress and development. This Article proposes that the idea of a use right in the copyright system should, as in the law of nuisance, require a balance of competing interests in use of information as a resource for progress and development, and involve an enquiry into the reasonableness of exercises of entitlements in literary and artistic works by copyright owners.
Publication DateMarch 5, 2010
Citation InformationAlina Ng. "The Idea of a Use Right" Association of Law, Property & Society Annual Meeting (2010)
Available at: http://works.bepress.com/alina_ng/9/