I have on this blog called for a thoroughgoing re-examination of the current balance between reward and innovation in copyright law by the enactment of a broad legislative right of fair use. Via What if . . . and Copyright on madisonian.net (Mike Madison) and What Ifs? Copyright Law III on 43(B)log (Rebecca Tushnet, personal site; Georgetown site), I learn that Abraham Drassinower, of the University of Toronto Faculty of Law, in a paper entitled “What if copyright were really about authors?” at the What If, and Other Alternative Intellectual Property and Cyberlaw Stories IP Symposium argued:
If authorship were central, copyright would be less extensive. There would be no grounds for liability for copying for personal use, and the defense of fair dealing/fair use would not be a mere exception. It would be a user right.
Great stuff, this! (At the link above, Mike Madison explored similar territory). It bears repeating: in my view, fair use ought to be a right, and not merely an exception, exemption, license, or privilege.
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There has been much modern discussion of the role of the author in the history of modern copyright law. I’ve enjoyed Saunders “Authorship and Copyright” (Routledge, London, 1992); Mark Rose “Authors and Owners. The Invention of Copyright” (Harvard University Press, 1992); Sherman and Strowel (eds) “Of Authors and Origins. Essays on Copyright Law” (Clarendon Press, Oxford, 1994); Jody Greene “The Trouble with Ownership. Literary Property and Authorial Liability in England, 1660-1730″ (U Penn Press, 2005) (reviewed here by IPKat); Ronan Deazley “On the Origin of the Right to Copy. Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775)” (Hart Publishing, Oxford, 2004) and Ronan Deazley “Rethinking Copyright. History, Theory, Language” (Edward Elgar Publishing, 2006) (reviewed here by IPKat and here by William Patry; see also Patry here and here).
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