A rights-based view of the idea/ expression dichotomy in copyright law

Abstract

The vast landscape of contemporary copyright theory still reveals traces of a once lively and heated struggle between two views of copyright law. On the one hand, there is a view of copyright law as the vindication of the author's natural right to the products of her labour. This rights-based view posits that the inherent dignity of authorial right is the defining axis around which the law of copyright either does or ought to orbit. On the other hand, there is a view of copyright law as a statutory instrument designed to balance incentives necessary for the author's productivity with the public interest in access to and dissemination of her products. This instrumentalist view posits that the author's legal entitlement is but a function of the public interest, a means to an end-Albeit a necessary means-not an end in itself. It is fair to say that, at least in North America, the latter of these two orientations is dominant. Prominent among the reasons for that dominance is the widely shared perception that the vindication of the inherent dignity of authorial right is theoretically deficient because it cannot consistently limit the author's entitlement- enshrined as a matter of natural right-in light of the public domain.