Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights


The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the environment to encourage authorship and cannot be undermined as social and technological environment changes in favor of a social goal. To do so would result in a disrespect for the institution that was established to ensure that authorship ultimately contributes to a larger social goal. As rights under copyright are taken seriously as trumps over social goals, we can then attempt to answer some of the more difficult questions within the legal institution, which is the extent rights should invade and affect social welfare on the part of the public. A three-tenet test is proposed to determine when a right under copyright should be abridged. The newly proposed treaty on the Protection of Broadcasting Organizations by the World Intellectual Property Organization is analyzed through the lenses of the three tenet test and this paper presents that the new proposed rights do not affect social welfare and should be acceptable.


Intellectual Property Law | Jurisprudence | Law and Society

Date of this Version

July 2006