I have on this blog called for a thoroughgoing re-examination of the current balance between reward and innovation in copyright law by the enactment of a broad legislative right of fair use. Via What if . . . and Copyright on madisonian.net (Mike Madison) and What Ifs? Copyright Law III on 43(B)log (Rebecca Tushnet, personal site; Georgetown site), I learn that Abraham Drassinower, of the University of Toronto Faculty of Law, in a paper entitled “What if copyright were really about authors?” at the What If, and Other Alternative Intellectual Property and Cyberlaw Stories IP Symposium argued:
If authorship were central, copyright would be less extensive. There would be no grounds for liability for copying for personal use, and the defense of fair dealing/fair use would not be a mere exception. It would be a user right.
Great stuff, this! (At the link above, Mike Madison explored similar territory). It bears repeating: in my view, fair use ought to be a right, and not merely an exception, exemption, license, or privilege.
There has been much modern discussion of the role of the author in the history of modern copyright law. I’ve enjoyed Saunders “Authorship and Copyright” (Routledge, London, 1992); Mark Rose “Authors and Owners. The Invention of Copyright” (Harvard University Press, 1992); Sherman and Strowel (eds) “Of Authors and Origins. Essays on Copyright Law” (Clarendon Press, Oxford, 1994); Jody Greene “The Trouble with Ownership. Literary Property and Authorial Liability in England, 1660-1730” (U Penn Press, 2005) (reviewed here by IPKat); Ronan Deazley “On the Origin of the Right to Copy. Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775)” (Hart Publishing, Oxford, 2004) and Ronan Deazley “Rethinking Copyright. History, Theory, Language” (Edward Elgar Publishing, 2006) (reviewed here by IPKat and here by William Patry; see also Patry here and here).