2. An Overview of Copyright: A Balance of Interests

Lipszyc (2004), p. 525. The Manual was published in Spanish in 1993 and translated into English in 1999. Moral rights include the right of attribution, the right to remain anonymous, the right of integrity to stop a work from being distorted, mutilated or otherwise modified, and the right to control a work in association with a product, service, cause or institution. For additional details see Vaver (2000), pp. 158–168.

Torremans (2005), p. 172 and MacQueen et al. (2008), p. 41.

Ricketson and Creswell (2002), p. 10.

Cornish (2001), p. 13; Laddie et al. (2000), p. 1 and Mustafa (1997), p. 3.

Ricketson maintains copyright protects authors and their assignees in their original literary, dramatic, musical, and artistic works, and grants similar but limited protection for a range of other subject matters of a more ‘industrial’ character, such as sound recordings, films, television and sound broadcast, and the typographical arrangements of published editions of works. More recently, the rights of performers in their live performances have been given limited protection under copyright law. See Ricketson and Creswell (2002), p. 10. See also Davenport (1993), p. 57.

It seems the higher the level of generality or abstraction an idea is, the less likely it is to be protected, see Plix Products v Frank M Winstone (1986) FSR 63 (High Ct of New Zealand) per Prichard J 92-94 (aff’d Plix Products v Frank M Winstone (1986) FSR 608 (Ct App of New Zealand)).

Copyright as a type of intellectual property is described as ‘subsist’ rather than ‘exist’, see Cornish (2001), p. 17.

Economists distinguish resources as rivalrous and non-rivalrous. A non-rivalrous resource cannot be exhausted; therefore, the issue is to maintain enough incentive for a producer to continue. For a rivalrous resource, first, sufficient incentive has to be provided and second, the consumption by a person should not deplete another’s fair share. See Hardin (1968), pp. 1243–1248, which describes a dilemma in which an individual acting independently carries out an act that greatly benefits him/herself but ultimately the act destroys a shared social resource even if it is not in anyone’s long term interest to do so. See also Landes and Posner (2003), p. 14.

Marginal cost is the additional cost of producing one extra unit, see Samuelson and Nordhaus (2010), p. 9.

Druey (2004) Information Cannot Be Owned.

For example, in West Africa, Timbuktu was the most celebrated centre of learning that contributed to Islamic and world civilisation. By the fourteenth century, important books were written and copied in Timbuktu, establishing the city as the centre of a significant written tradition; see Rashid O, Legacy of Timbuktu. In al-Andalus, consisting of the parts of the Iberian Peninsula governed by Arab and African Muslims, between the eighth and the fifteenth centuries, many tribes, religions and races co-existed with each contributing to the intellectual prosperity of Andalusia. Literacy in Islamic Iberia was far more widespread than any other country of the West. See Previté-Orton (1952), pp. 616–643. In Europe, the Renaissance that began in Italy in the Late Middle Ages has had wide influence on literature, philosophy, art, politics, science, religion, and other aspects of intellectual enquiry. This is attributed to the rediscovery of the Roman and Greek classical works.

Antons (2004), p. 31.

Gutterman and Brown (1997), pp. 32–33. For example, in ancient China intellectuals enjoyed the reputation by creating an intellectual work. Alford (1995) and Antons (2004), p. 32.

Some jurisdictions allow for the waiver of moral rights. In the United States, the Visual Artists Rights Act of 1990 VI of the Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128 recognises moral rights, but they only apply to works of visual art.

Locke (1690), s 27.

See Lunney (1996), p. 485 and Netanel (1996), pp. 285 and 292; at 292 the author argues that: ‘This free rider problem … would greatly impair author and publisher ability to recover their fixed production costs’; Landes and Posner (1989), p. 328. The authors here argue that when the market value of a creative work is reduced to the marginal cost of copying that work, the author and publisher will be unable to recover their costs in creating the work; Fisher (1988), pp. 1661 and 1700.

Bentham (1986), pp. 49–52.

Some leading articles in this field are Epstein (2008), p. 58; Posner (1979), p. 103; Lunney (1996), p. 483 and Demsetz (1969), p. 1.

Rawls (1971), pp. 10–16.

Drahos (1996), p. 177.

For example, the Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4-11-1950) has affirmed the right to freedom of expression. This has implications for the defence of fair dealing for such acts as news reporting, criticism and review. See Art 10.

Zemer (2006), p. 57.

Locke (2002), ch V para 45.

Locke (2002), ch V para 27.

Fisher (2001), p. 170 and Hughes (1988–1989), pp. 299–330.

Locke (2002), ch V para 37.

Ibid.

Locke (2002), ch V para 27.

Litman (1990), p. 996 and Ginsburg (1981–1982), p. 658. Fisher offered a detailed discussion on this issue; see Fisher (2001), pp. 180–181.

For example, a bestseller novel was involved in a copyright infringement dispute; see Baigent v Random House Group Ltd [2006] EWHC 719 (Ch). The author borrowed ideas and plots from two previous works employing the same theme, and was accused of plagiarism by the two authors. The Court held there was no ground for plagiarism by comparing the authors’ works with the language and the general theme of the work in question.

For a discussion, see Lemley (2015), pp. 1338–1339; Moore (2012), p. 1069; Gordon (1992–1993), pp. 1533–1609; Hettinger (1989), pp. 31–52; Sterk (1995–1996), pp. 1234–1240 and Weinreb (1998), p. 1218.

Hegel (1991), pp. 74–75 s 43.

Hegel (1991), p. 77 s 46.

Hegel (1991), p. 78 s 46; Drahos (1996), pp. 73–94 and May (2000), pp. 26–28.

May (2000), p. 26.

Fisher (2001), pp. 172–173.

Fisher (2001), p. 173.

Radin (1993) and Waldron (1988).

MacQueen et al. (2008), p. 42. For example, it is still the primary justification for copyright in Germany; see Davies (2002).

A legislative example is the 17 USC s 106A that is known as the Visual Artists Rights Act of 1990. There are comments on this changing trend, see Cotter (1997), pp. 6–27 and Yonover (1995), pp. 935–1004.

See n16, Lunney (1996), p. 485 and Netanel (1996), p. 292 the author argues that:

This free rider problem … would greatly impair author and publisher ability to recover their fixed production costs.

Landes and Posner (1989), p. 328, the authors argue that when the market value of a creative work is reduced to the marginal cost of copying the work, the author and publisher will not be able to recover their costs of creating the work; Fisher III (1988), p. 1700.

Reed J held in Mazer v Stein:

[T]o grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare.

347 US 201219. See also the testimony of Elizabeth Janeway at ‘Copyright Law Revision: Hearings before Subcommittee No 3 of the Committee on the Judiciary House of Representatives Eighty-Ninth Congress First Session on HR 4347, HR 5680, HR 6831, HR 6835’ (1965), reprinted in Grossman GS (1976), p. 100. For comments on the testimony, see n 31, Sterk (1995–1996) and Yen (1990), pp. 517–559; see n 31, Weinreb (1998), pp. 1211–1214.

Davis (2008), pp. 29–30. Sweat of the brow doctrine requires a lower level of a work’s originality, see Feist Publications v Rural Tel Service 499 US 340 (1991), the Court of Appeals affirmed that telephone directories were copyrightable as a compilation.

For China, see Alford (1995) and Shao (2005), pp. 400–431. For the West, see Weiner (2000) and Burkitt (2001), pp. 146–186.

Johnson and Post (1995–1996), p. 1384 and Ryan (2000), p. 652 and accompanying note 25.

Netanel (1996), p. 292.

Drahos (1996), pp. 171–175.

Lunney (1996), pp. 494–495 and Ryan (2000), pp. 653–655.

Sterk (1995–1996), p. 1207; Lunney (1996), pp. 485–495; Leval (1990), pp. 1109–1110 and Landes and Posner (1989), pp. 342–343, the authors argue that as the number of copyrighted works increases, the amount of valuable works in the public domain falls. Therefore, it is expensive for authors to acquire raw materials to create new works.

Netanel (1996), p. 285 and Kreiss (1995–1996), p. 4.

In Computer Associates Intern Inc. v Altai Inc. 982 F 2d 693 (2nd Cir 1992) the Court held that copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection for authors as an incentive to create, but on the other hand, it must limit the extent of that protection so as to avoid monopolistic stagnation. In applying a federal act to new types of cases, courts must always keep this symmetry in mind, see 693. See Ryan (2000), p. 655; Lunney (1996), p. 483. In Sony Corp v Universal City Studios 464 US 417 (1984), the Court held that defining limitations on copyright ‘involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand’ at 429. Also see Copyright Law Revision (HR No 94-1476) reprinted in 1976 USSCA 5664, 5749 that discusses the incentives-access balance in determining a copyright’s appropriate term; see Wildlife Exp Corp v Carol Wright Sales Inc. 18 F 3d 502 (7th Cir 1994) 507, the Court held it necessary to balance authors’ rights to their original expression in order to allow others to build freely upon the ideas conveyed by a work.

Bentham (1986), pp. 49–52 and Bentham (1996), p. 12 ch I para 3.

Bentham (1996), p. 12 ch I para 3.

Bentham (1996), p. 74 ch VII para 1.

West (2003), p. 30.

Postema (1986), p. 148.

Stadler (2006), pp. 609–672. The US Supreme Court prioritises the goal of promoting intellectual works when interpreting copyright and patent statutes, see, for example, Fox Film Corporation v Doyal 286 US 123 (1932) 127–128; Kendall v Winsor 62 US 322 (1858) 327–328. A host of lower courts agreed and followed this approach, for example, Hustler Magazine Inc. v Moral Majority Inc. 796 F 2d 1148 (9th Cir 1986) 1151; Consumers Union of US v General Signal Corp 724 F 2d 1044 (2nd Cir 1983) 1048. For comments, see Leval (1990), p. 1108 and Kreiss (1995–1996), p. 2.

Art 1 s 8 cl 8 of The Constitution of the United States of America 1787 empowers Congress:

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Sterk (1995–1996), pp. 1197–1249; Netanel (1996), p. 308 and Lunney (1996), p. 581.

Landes and Posner (1989), pp. 325–364.

Ibid.

Zemer (2006), pp. 60–61; Shamans (1996), p. 38 and Samuelson (2003–2004), p. 5. Samuelson argues that economic effects are almost always important to judges in a fair use dispute.

Goldstein (1994), pp. 178–179; Fisher (2001), pp. 174–175 and Ryan (2000), p. 657.

Posner (1979), p. 124. This article defines wealth as the value in dollars/dollar equivalents of everything in a society. The value of a pertinent item is measured by what people are willing to pay for it or, if someone owns the item, the minimum amount of money the person(s) will accept to give up the rights and ownership of the item.

Ryan (2000), p. 649.

As one commentator writes:

Wary of unreliable value judgments about art and incapable of predicting which of even the most successful authors’ future works will capture or recapture the public’s fancy, the mature copyright paradigm embraces all literary and artistic works simply by virtue of their being creations and leaves the assessment of merit entirely to the market.

See Reichman (1989), pp. 142–143.

Lunney (1996), p. 489.

Demsetz (1969), pp. 1–22.

Netanel (1996), p. 286.

Ryan (2000), p. 658.

Fisher (2001), pp. 175–176; Gordon (1989–1990), pp. 1439–1449 and Merges (1993), pp. 306–307. Merges argues that private organisations such as collective rights management ones are likely to be superior to any government instituted compulsory licensing system.

Fisher (2001), pp. 174–176.

Examples of such theorists are Michelman (1988), pp. 1493–1538 and Fisher et al. (1993).

Fisher (1997), pp. 1212–1218.

Netanel (1996), p. 283; also see Netanel (2013), p. 1082.

Netanel (1996), p. 283. See also Netanel (1998), pp. 217–329.

Coombe (1990), pp. 1853–1880.

Elkin-Koren (1994), pp. 345–411.

Madow (1993), pp. 125–242.

Fisher (1988), p. 1659.

Lessig (2004) and Lessig (2001).

Adewopo (2001), p. 753.

Yamin and Posey (1993), p. 143.

Gana (1995), p. 132.

Driver (1961), pp. 221 and 263.

Gana (1995), p. 135.

Milpurrurru v Indofurn Pty Ltd. (1990) 130 ALR 649; [1995] European Intellectual Property Review D-61 Federal Court of Australia 13-12-1994 (reported in 1995 17(3) EIPR D-61). Indofurn was a company that imported carpets from Vietnam to Australia. The imprints on the carpets had been copied from the works of some local indigenous artists in Australia. The aboriginal artists sued Indofurn for infringing on their copyright by importing their Vietnamese carpets into Australia. The Court ruled that any inaccurate reproduction of their painting was an offense to the artists because it insulted their faith.

Rahmatian (2007), pp. 220–223. Rahmatian argues that an unlimited individualistic property right is an oversimplification of the ‘western’ property concept and ‘non-western’ communal ownership is uncertain. A communal right to land such as the Gusii in Western Kenya is a far more sophisticated network of legal relations for each individual community. Von Lewinski indicates in an earlier work that collective rights are a part of indigenous culture. Nonetheless, this does not mean that every group member at the same level has equal status. See Stoll and von Hahn (2004), pp. 14–15.

Macmillan (2007), p. 317.

Ibid.

United Nations Educational, Scientific and Cultural Organization (1996). For comments see Macmillan (1998), p. 71.

Mitsui (1993), pp. 141–142.

Some scholars argue that the printing technology was so underdeveloped that imperial Chinese authorities did not have to engage in copyright protections, see Zheng and Pendleton (1991), p. 14. Adelstein and Peretz express a similar view in Adelstein and Peretz (1985), pp. 210–238. Another argument, an economic one, is that the market of printed materials was small in China because most of the Chinese were illiterate until the early twentieth century; therefore, there was no need for copyright protection. See Berman (1992), p. 201.

See the Confucius Classical compilation of Lun Yu (Analects). On the pursuit of scholarship, Confucius said:

I am a raconteur and not a writer, a seeker and follower of ancient history and culture …

The Analects of Confucius (1999), p. 81 bk 7 ch 1.

Fong (1962), pp. 95–140.

Art 8 of WCT and Arts 10 & 14 of WPPT respectively; also s 1201 of Digital Millennium Copyright Act of 1998 (DMCA) Pub L No 105-304, 112 Stat 2860 (28-10-1998). The right of access grants authors exclusive rights to authorise any communication with the public about their works in such a way that members of the public may access these works from a place and at a time individually chosen by the authors. For example, authors can control user’s access to their works in interactive on-line systems. See LA Times v Free Republic 2000 US Dist LEXIS 5669 (CD Cal 05-04-2000), pp. 67–68; Chen (2012), p. 189; Ginsburg (2006), pp. 39–58; Olswang (1995), pp. 215–218 and ALAI 2001. However, some scholars argue the control of access is not a right but merely an author’s power. See Heide (2000–2001), pp. 469–477.

Art 11 of WCT and Art 18 of WPPT.

Art 10 of WCT and Art 6 of WPPT.

Patrick (2004).

The system of droit d’auteur (authors’ rights) predominant in the civil law tradition generally only affords protection to individual authors. This system leaves others such as performers, producers of phonograms and broadcasting organisations under the protection of related neighboring rights. In contrast, copyright grants protection for both individuals (natural persons) and corporate bodies (artificial persons).

Historically and contemporarily, there has been, and there is a common basis for copyright in common law and in civil law. For example, see Davies (1995), pp. 964–966.

An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.

Ch XIX of Statute of Queen Anne of 1710 (Ch 19). This was the first parliamentary English Copyright Act. It is important to note it was not the first English statute to deal with copyright but was the first to be adopted by Parliament rather than by royal decree and the first to be unannounced with censorship.

Vitoria (1974), p. 20 para 16.

Davies (2002), p. 13. The principles are natural law, just rewards for labour, stimulus for creativity and social requirements. See also Stewart (1989) para 1.02–1.05. Stewart justifies copyright from the views of natural justice and economic, cultural and social considerations.

Books and sheet music were treated like printed books, see Bach v Longman 98 ER 1274, (1777) 2 Cowp 623, 1 Chit 26.

Ulmer and Schricker XIV 13 para 2–25.

The Europeans saw the Berne Convention as a compromise among Continental European nations, see Dietz (1978), p. 159.

Bainbridge (2010), p. 35.

The UK ratified the Berne Convention in1887, according to the WIPO record http://​www.​wipo.​int/​treaties/​en/​ShowResults.​jsp?​lang=​en&​treaty_​id (assessed 02-08-2017). However, it only abolished the requirement to register copyright with the Stationers Hall in the Copyright Act of 1911.

Only works with issued copies were held to be published.

Hansen (1996), pp. 579–593.

Sell (2003), pp. 8–10 and McCullagh (2005).

Vinje (2000), pp. 558–559 and Heins and Beckles (2005), p. 61.

Copyright, Designs and Patents Act of 1988.

For more details, Davies (2002), p. 49.

WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty.

European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonization on certain aspects of copyright and related rights in the information society.

The term American copyright law means federal law. The laws of several states reflect a variety of natural law influences, including John Locke’s natural rights in property, see Patterson (1968), pp. 183–192.

Stadler (2006), p. 609; Sterk (1995–1996), p. 1203 and Karjala (1997), p. 40.

Art 1 s 8 cl 8 of the US Constitution.

2nd Sess Ch XV, Copyright Act of 1790 (1 Statues At Large 124) as amended in 1802, 1870, 1909 and 1976.

Eldred v Ashcroft 537 US 186 (2003) 245-248; Harper & Row Publishers v Nation Enterprises 471 US 539 (1985) 546; United States v Paramount Pictures 334 US 131 (1948) 158. See also Feist Publications v Rural Tel Service 499 US 340 (1991) 349. Here the Court held that the primary objective of copyright is not to reward the labour of authors, but ‘[t]o promote the Progress of Science and useful Arts’. Twentieth Century Music Corporation v Aiken 422 US 151 (1975), p. 156, in which the Court held a creative work was to be encouraged and rewarded, but private motivation must ultimately promote broad public availability of literature, music, and other forms of art. For comments, see Kreiss (1995–1996), p. 7 and Goldstein (1985–1986), p. 1123.

They were revised or rewritten in 1831, 1870, 1909 and 1976.

Ginsburg (2001). See Teleprompter Corp v Columbia Broadcasting Sys Inc. 415 US 394 (1974) 411–414 (cable transmissions); Fortnightly Corp v United Artists Television 392 US 390 (1968) 399–402 (cable transmissions); White-Smith Music Pub Co v Apollo Co 209 US 1 (1908) 17–18 (piano rolls).

The 1802 Amendment to the Copyright Act of 1790, enacted by the Seventh Congress on 29 April 1802.

Copyright Act of 1831 (First General Revision of US Copyright Law), enacted by the Twenty-first Congress on 3 February 1831.

Copyright Act of 1870 (Second General Revision of US Copyright Law), enacted by the Forty-first Congress on 8 July 1870.

There are other notable expansions of copyright. For example, common law provides an author perpetual copyright no matter whether the person’s work is published or not, while statutory copyright law provides that the publication date is the day copyright commences. However, the Copyright Act of 1976 abolished the dual system of copyright and shifted the inceptive day of copyright to the day a works had a tangible form. The substantive examination and registration of copyright also experienced a decline after the Copyright Act of 1909.

S 1 of Copyright Act of 1790.

Ch 1 s 24 of Copyright Act of 1909.

S 302 of Copyright Act of 1976.

The subject matter expanded from books, charts and maps to a variety of objects that were literary works and musical works which included any accompanying words as well as dramatic works with any accompanying music. Also included were pantomimes and choreographic works, pictorial, graphic, sculpture works, motion picture and other audiovisual works, and sound recordings. Compare s 3 of the Copyright Act of 1790 and see Goldstein (2005), pp. 1:49–1:50.

Copyright Law Revision (HR No 94-1476) to the 94th Congress 2nd Session (1976), p. 51.

Anonymous ‘Righting Copyright’ Time Magazine (1976), p. 92.

For example, see Cardtoons v Major League Baseball Players Ass’n 868 F Supp 1266 (1994) 1271, the Court opined:

[T]he factors contained in Section 107 are merely by way of example, and are not necessarily an exhaustive enumeration. This means that factor other than those enumerated may prove to have a bearing upon the determination of fair use.

See also Beebe (2008).

Litman (1986–1987), pp. 895–896.

Lessig (2001), p. 6.

Lessig (2001), p. 6.

Copyright Term Extension Act of 1988 Pub L No 105-298, 112 Stat 2827 (27-10-1998). Also known as the Sonny Bono Copyright Term Extension Act.

Digital Millennium Copyright Act of 1988 Pub L No 105-304, 112 Stat 2860 (28-10-1998).

The legitimacy of CTEA was challenged in Eldred v Ashcroft 537 US 186 (2003). The plaintiff Eldred argued that the extended copyright protection term prevented the free flow of information and violated the US Constitution. The passage of CTEA only occurred because of the extensive lobbying from media giants and recording and motion picture corporations such as the Disney Company.

Dusollier (2005), p. 203; Braun (2003), p. 497; Ginsburg (2001), p. 1613; Nimmer (2000), pp. 702–725 and Samuelson (1999), pp. 537–544.

This section focuses on the regional copyright laws of the EC and EU. The EC was created under the Treaty of Rome on 25 March 1957. The Treaty hoped to build a European Economic Community (EEC) based on a common market. The EEC expanded from six members to nine members in 1973. The Treaty of Maastricht established the EU in 1993. Ten more countries from the former Soviet-bloc countries joined the EU in 2004, and another two countries joined in 2007.

Dietz (1978), p. 153.

Ibid.

France and Belgium did not have this exception.

Belgium and Luxembourg did not have this exception.

The revised text includes limitations and exceptions for the use of quotations, the use of works for teaching, and private use, see Dietz Copyright Law in the European Community 159.

Id 158–159.

Id 160.

The EC did not have a ‘pan-EC’ copyright law after the establishment of the European Economic Area (EEA). The copyright laws remained national. However, all EC Member States were signatories to both the Berne and the Universal Copyright Convention. By virtue of Protocol 28 to the Agreement on the European Economic Area (OJ No L 1, 3.1.1994), all Contracting Parties were obliged to accede to the Paris Revision of the Berne Convention before 1 January 1995 and to ensure their national laws complied with its substantive provisions before 1 January 1994. For more details see Brown and Robert (1994), p. 39.

Brown and Robert (1994), p. 44.

Speech delivered by Reinbothe at the ALAI Conference in Amsterdam 4–8 June 1996, see Reinbothe (1997), p. 37.

Id 38.

Commission of the European Communities Copyright in the Knowledge Economy Green Paper of the Commission of the European Communities Brussels COM (2008) 466/3.

Art 5(1) of the Information Society Directive.

Arts 5(2)-(4).

May (2003), pp. 1–5.

Stewart (1989), p. 26.

Evans (1994), p. 161; Cottier (1991), p. 386.

For example, it defines the subject matter of copyright and the term of protection. It also limits authors’ exclusive rights, see Fitzpatrick (2003), p. 215.

Universal Copyright Convention of 1952 as revised at Paris on 24 July 1971.

Norman (2004).

Mort (1997), p. 180.

The Uruguay Round consisted of a series of negotiations between 1986 and 1993 that led to the revision of GATT. One hundred and twenty-five countries signed the revision on 15April 1994.

Art 3 of the TRIPS Agreement.

Mort (1997), p. 177.

Art 9(1) of the TRIPS Agreement. For details, see Smith (1996), p. 561.

Gervais (2002), p. 936.

Fitzpatrick (2003), p. 215.

JAL Sterling and Cook (2015), pp. 587–589.

JAL Sterling and Cook (2015), p. 589.

Ramello (2005), pp. 120–141.

Suzor (2013), pp. 304–306 and Gordon and Postbrief (1998), p. 143.

Drahos (1996), pp. 171–175.

Id 171–175.

Druey (2004), p. 12.

Id 2.

Id 15.

The freedom of expression is found in Art 19 of the Universal Declaration of Human Rights and Art 10 of the European Convention on Human Rights.

Netanel (1996), p. 283.

Ramello (2005), p. 125.

The view that information is a subset of knowledge and cannot be completely owned by a single person is widely accepted by social science; see Geertz (1973) and Durkheim (1973).

For example, see Cohen (2003), pp. 988–992.

Hilty (2007), p. 331.

Lessig (2001), p. 23.

Copyleft is a practice that uses copyright law to remove restrictions on distribution of copies and modified versions of a work and requires the same freedom be preserved in modified works. Copyleft is based on an author’s right to impose copyright restrictions with a copyright licence on users. It is implemented by a licence defining specific copyright terms applied to such works as software, documents, music and art. A widely used copyleft licence is the General Public License.

Wikipedia is an internationally web-based cooperative free-content encyclopaedia that allows free access and edition of its content. It is carried out by the non-profit Wikimedia Foundation. The word Wikipedia is a portmanteau of wiki and encyclopaedia, where ‘wiki’ is a term originally from a web called wiki wiki and derived from the Hawaiian wiki wiki which means quick. It is a multilingual web of 200 languages and editions.

Creative Commons is a non-profit organisation. It offers different types of licences to enable copyright holders to grant a number of rights to the public while retaining other rights. The project provides several free licences that copyright holders can use when they release their works on the web. They also provide RDF/XML metadata to makes the automatic process and the locating of licensed works easier.

Hardin (1968), pp. 1243–1248.

Lemley (1996–1997), pp. 989–1084.

Davies (2002), pp. 28–50.

S 171(3) of CDPA 1988.

Beloff v Pressdram Ltd. [1973] 1 ALL ER 241; Lion Laboratories Ltd. v Evans [1984] 2 ALL ER 417. For comments, see Dworkin (1998), pp. 142–143.

Davies (2002), pp. 155–159, describes the evolution of French copyright law that was accompanied by debates about public interest and the legislative response to the debates. Also see 202–221 on the same theme involving German copyright law.

Bainbridge (2010), pp. 200–202.

von Ihering (1877) & (1883), pp. 459–464 and Pound (1959), pp. 127–142. From the 1960s, the term sociological jurisprudence is less used as the term social-legal studies increasingly has replaced it.

Pound (1959), pp. 327–334.

Pound (1959), pp. 235–236 and Dhavan (1986), p. 20.

Dhavan (1986), p. 20.

A general analysis on intergenerational public goods can be found in Sandler (2001), pp. 161–167.

Freeman (2001), pp. 659–672.

Pound (1954), pp. 42–47.

Only in this way is a law not just a law on paper but also is a law in action. One example is China’s disjointed copyright legislation and enforcement that is criticised for merely paying lip service to its international obligations, see Hansen (1996), p. 579.

Antieau (1977), p. 852.

Less developed countries have gone through three stages: (1) the colonial stage when European power was dominate; (2) after the Second World War when colonised nations endeavoured to regain political independence and sovereignty and; (3) the post-colonial stage when less developed countries tried to establish independent nationhood and national development. See Stover (1984), p. 43.

Stover (1984), p. 42.

Stover (1984), p. 41. A Similar view is found in Waelde and MacQueen (2004), pp. 259–283.

May (2003), p. 3.

For example, Initial Services Ltd. v Putterill [1968] 1 QB 396 (CA) 405G-406B Lord Denning MR held that it was in the public interest to disclose information in a confidential status. For more details, see Bowers et al. (2007), pp. 256–315.

An example is the freedom of information laws in the United Kingdom.

A-G v Guardian Newspaper (No 2) [1990] 1 AC 109; A-G v Blake [1996] FSR 727; Hyde Park Residence Ltd. v Yelland [2000] 3 WLR 215 (CA). For comments on Hyde Park, see Burrell (2000), pp. 394–404; Sims (2006), pp. 335–343 and Browes (2000), pp. 289–292.

334 US 131 (1948).

Harper & Row Publishers v Nation Enterprises 471 US 539 (1985), p. 546.

[1984] 1 FC 1065.

Id 27.

(1980) 147 CLR 39.

Beloff v Pressdram Ltd. [1973] 1 ALL ER 241.

(1980) 147 CLR 39 56-57.

Preamble of the WCT 1996.

The preamble of the WPPT 1996 states that it attempts to maintain a balance particularly with ‘education, research and access to information’.

S 225(3) of New Zealand Copyright Act of 1994 Public Act 1994 No 143, which is identical to s 171(3) of CDPA 1988.

Art 4(2) of Copyright Law 1990, as revised in 2001.

Constitution of the People’s Republic of China of 1982 amended in 1988, 1993, 1999 and 2004.

Ch 2 Art 47 of Constitution 1982.