User's rights and the public domain

Breakey, Hugh (2010) User's rights and the public domain. Intellectual Property Quarterly, 3: 312-324.

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Author Breakey, Hugh
Title User's rights and the public domain
Journal name Intellectual Property Quarterly   Check publisher's open access policy
ISSN 1364-906X
Publication date 2010
Sub-type Article (original research)
Issue 3
Start page 312
End page 324
Total pages 13
Editor Margaret Llewelyn
Place of publication London, U.K.
Publisher Sweet & Maxwell
Collection year 2011
Language eng
Formatted abstract
In recent years the concept of “user’s rights” has gained considerable currency in discussions of the limits of intellectual property in general, and of copyright in particular. Those arguing in favour of the public domain and increased limitations on copyright have increasingly sought to fight fire with fire – to place substantive user’s rights against the claims of intellectual property. User’s rights have in some jurisdictions received explicit Supreme Court imprimatur and they are expressly recognised in key charters of human rights. Yet there is a residual uncertainty about the appropriateness of this language. Is it correct, as a general conceptual and normative matter, to speak of the broad liberties citizens have regarding access to ideas and information as rights? The few treatments dealing directly with this question have argued – often from a Hohfeldian footing – that ascriptions of user’s rights are inappropriate. Even commentators largely sympathetic to the public domain have found themselves drawn to this conclusion. In this paper, I vindicate the general applicability of rights language by arguing these deflationary accounts are mistaken – and are mistaken even in terms of the theories of rights they themselves deploy.
Keyword Copyright
Human rights
Public domain
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2011 Collection
School of Historical and Philosophical Inquiry
TC Beirne School of Law Publications
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Created: Tue, 15 Feb 2011, 14:34:03 EST by Dr Hugh Breakey on behalf of School of Historical and Philosophical Inquiry