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New Scholarship: Epstein on Copyright and Property |
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Posted by Steven Wu on Sunday, February 15 @ 23:58:43 EST
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From Legal Theory Blog comes notice of a paper by Professor Richard Epstein entitled "Liberty versus Property? Cracks in the Foundation of Copyright Law." From the abstract:
The common classical view of liberty and property treats them as part of a coherent
whole. The attack on property in the general literature often rests on the grounds that any system
of property represents an unacceptable abridgment of personal liberty: property, said Proudhom,
is theft. Similar arguments have been raised in connection with intellectual property, often by
libertarians who accept the common heritage of liberty and property with tangible assets. This
paper argues that the tension identified between liberty and property applies in both realms and
can only be resolved by a unified technique that asks whether the creation of property rights
creates Pareto improvements over a world in which all claims of liberty are accepted relative to
those of property. That approach yields a place for both sorts of regimes and explains why IP
rights are often less potent that rights in tangible land and chattels. This is sort of a vague description of the paper. A few sentences from the conclusion gives a better idea of Epstein's argument:In sum, when we look at the situation with respect to copyright, it seems clear that
the peculiar nature of the rights in question justify rules that allow for limited duration
and fair use, and perhaps some other restrictions. But as such they do not alter the basic
tension that exists between liberty and property in the case of labor or natural resources. . . . Quite simply, any system of private property imposes heavy costs of exclusion. However, these costs can only be
eliminated by adopting some system of collective ownership that for its part imposes
heavy costs of governance. The only choice that we have is to pick the lesser of two
evils. Very interesting.
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