David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
Learn more about PhilPapers
This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably limit and undervalue fair uses. Epstein's preference for private ordering is flawed, at least in the IP context, because suboptimal customs will develop due to market inequalities, the complexity of the IP industries and the dearth of ongoing relationships and repeat players.
|Keywords||No keywords specified (fix it)|
No categories specified
(categorize this paper)
Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
|Through your library||
References found in this work BETA
No references found.
Citations of this work BETA
No citations found.
Similar books and articles
Shaheen E. Lakhan & Meenakshi K. Khurana (2008). Intellectual Property, Copyright, and Fair Use in Education. Cogprints.
Sheila Slaughter & Gary Rhoades (2010). The Social Construction of Copyright Ethics and Values. Science and Engineering Ethics 16 (2):263-293.
Wendy Mcelroy (2011). Contra Copyright, Again. Libertarian Papers 3.
Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson.
Yu-Lin Chang (2007). Who Should Own Access Rights? A Game-Theoretical Approach to Striking the Optimal Balance in the Debate Over Digital Rights Management. Artificial Intelligence and Law 15 (4):323-356.
Roberta Rosenthal Kwall, Author-Stories: Narrative's Implications for Moral Rights and Copyright's Joint Authorship Doctrine.
Mark Alfino (1991). Intellectual Property and Copyright Ethics. Business and Professional Ethics Journal 10 (2):85-109.
Neil W. Netanel, Maharam of Padua V. Giustiniani: The Sixteenth-Century Origins of the Jewish Law of Copyright.
Judith Roof (1992). The Ideology of Fair Use: Xeroxing and Reproductive Rights. Hypatia 7 (2):63 - 73.
Sorry, there are not enough data points to plot this chart.
Added to index2009-01-28
Total downloads1 ( #483,801 of 1,413,361 )
Recent downloads (6 months)1 ( #154,160 of 1,413,361 )
How can I increase my downloads?