User's Rights and the Public Domain

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Title User's Rights and the Public Domain
Author Breakey, Hugh Edmond
Journal Name Intellectual Property Quarterly
Year Published 2010
Place of publication United Kingdom
Publisher Sweet and Maxwell
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 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 article, I vindicate the general applicability of rights language by arguing that these deflationary accounts are mistaken—and are mistaken even in terms of the theories of rights they themselves deploy.
Peer Reviewed Yes
Published Yes
Publisher URI
Copyright Statement Copyright remains with the author 2010. The attached file is reproduced here in accordance with the copyright policy of the publisher. For information about this journal please refer to the journal's website or contact the author.
Volume 2010
Issue Number 3
Page from 312
Page to 323
ISSN 1364-906X
Date Accessioned 2011-04-21
Language en_AU
Research Centre Key Centre for Ethics, Law, Justice and Governance
Faculty Arts, Education and Law
Subject Intellectual Property Law
Publication Type Journal Articles (Refereed Article)
Publication Type Code c1x

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