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Full-Text Articles in Law

Economies Of Desire: Fair Use And Marketplace Assumptions, Rebecca Tushnet Nov 2009

Economies Of Desire: Fair Use And Marketplace Assumptions, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

At the moment that “incentives” for creation meet “preferences” for the same, the economic account of copyright loses its explanatory power. This piece explores the ways in which the desire to create can be excessive, beyond rationality, and free from the need for economic incentive. Psychological and sociological concepts can do more to explain creative impulses than classical economics. As a result, a copyright law that treats creative activity as a product of economic incentives can miss the mark and harm what it aims to promote. The idea of abundance—even overabundance—in creativity can help define the proper scope of copyright …


Intellectual Liability, Daniel A. Crane Jan 2009

Intellectual Liability, Daniel A. Crane

Articles

Intellectual property is increasingly a misnomer since the right to exclude is the defining characteristic of property and incentives to engage in inventive and creative activity are increasingly being granted in the form of liability rights (which allow the holder of the right to collect a royalty from users) rather than property rights (which allow the holder of the right to exclude others from using the invention or creation). Much of this recent reorientation in the direction of liability rules arises from a concern over holdout or monopoly power in intellectual property. The debate over whether liability rules or property …