The Idea of a Use Right
Association of Law, Property &
Society Annual Meeting 2010
Alina Ng
March 5, 2010
Nuisance
Substantial and unreasonable interference
with the use and enjoyment of land
•
causes annoyance to
another’s use & enjoyment of
land
•
may be abated
•
balance of competing interests
Allows the Courts to enquire into the
social utility of the alleged tort-feasor’s
conduct and weigh that conduct against
its social cost
Legitimizes conflicting use of a resource
Manage uses of resources to achieve the
most socially desirable outcome
§106 Copyright Act
(1) Reproduce
(2) Prepare derivative works
(3) Distribute by sale, transfer of ownership,
rental, lease or lending
(4) Publicly perform
(5) Publicly display
(6) Perform publicly by means of digital audio
transmission
§107 Copyright Act
(1) Purpose and character of use
(2) Nature of the copyrighted work
(3) Amount and substantiality of work used
(4) Effect of use upon potential market for or
value of work
“The more transformative the new work, the
less will be the significance of other factors,
like commercialism, that may weigh against a
finding of fair use.”
Campbell v.Acuff-Rose Music, 510 U.S. 569 (1994)
Market effect seems almost determinative
Substitutability
use rights for the copyright system must allow
social uses of information as a resource to
encourage diverse forms of authorship and
creative activity
•
rights under the copyright act facilitate a
production and dissemination function
•
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
Proposal
the idea of a use right in the copyright system should:
a) as in the law of nuisance, require a balance of
competing interests in use of information as a
resource for progress and development; and ,
b) involve an enquiry into the reasonableness of
exercises of entitlements in literary and artistic
works by copyright owners.
We may achieve the goals of the copyright system by
using a similar test (as used in the law of nuisance) to
balance competing rights in the use and enjoyment of
informational resources
The trespass / nuisance distinction show that copyright cannot be about
excluding use of competing interests in information
Trespass
• conserve / preserve resources
• exclusion strategy
• protect private rights
• don’t need a reason to exclude
• in rem
• aims to protect natural right
• right arises through relationship
with property
• transfer of rights through market
• injunction
Nuisance
• manage competing use of resources
• governance strategy
• protect social rights
• reasonable use
• in personam
• aims to achieve economic efficiency
• right arises through sanctions
provided by courts and law
• transfer of rights through courts
• injunction / damages (or payment for use)
Information as a resource for progress should be subject to
various use rights rather than exclusive rights against the
rest of the world
Thank You