The inspiration for this chapter is the debate as to whether copyright, and indeed other forms of intellectual property (IP), are proprietary in nature. Some contributions to this debate have been formalistic in nature, focusing on the attributes of property and whether copyright works share sufficient characteristics with other types of thing that the law accepts can be the object of property rights. Other contributions have had a more explicit normative or philosophical focus. For instance, one line of argument doubts whether some explanations for property in tangible things apply to intangible ‘things’ such as copyright. Consider justifications based on the tragedy of the commons. The essence of this argument is that when resources are held in the commons, free to be used by all, people will typically maximise their individual, short-term interest even if this degrades the resource and is inimical to its long-term sustainability. Private property rights have been identified as one way to counteract this tendency, on the basis that they give owners a direct stake in the ongoing existence and quality of the resource. But it has been said that this justification is inapt for copyright because copyright works, being intangible, can be used simultaneously and repeatedly by many people (i.e., are non-rivalrous) with no depletion or degradation (i.e., are non-exhaustible). In fact, it has been said that the problem for copyright is the ‘tragedy of the anticommons’: that works end up being underused because of difficulties in clearing rights. With this and other concerns about a proprietary conception of copyright, numerous scholars explain copyright not as property but as a limited monopoly granted by the state to encourage and reward certain forms of intellectual and artistic endeavour.
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- Copyright and Invisible Authors: A Property Perspective
- Macmillan Education UK
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- Chapter 6