This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the patent and copyright clause. It is animated by the theory of common law copyright, which deliberately reconceptualizes social relations in order to recast them as property, and which has been with us for centuries. This paper investigates the “mythology of common law copyright,” showing how this reconceptualization has worked both historically and in the present day to push the law in a direction that is ostensibly author-centered, but is actually focused on the rights of intermediaries.
I have presented early versions of this piece at the 2012 Works in Progress in Intellectual Property Conference, held at the University of Houston Law Center, February 2012; the 2012 Intellectual Property Scholars Roundtable, held at Drake University Law School; and at the 2012 Law & Society conference. I would like to thank Funmi Arewa, Llewellyn Gibbons, John Cross, Ben Liu, Doris Long, Eben Moglen, Josh Sarnoff, Lars Smith, Mark Schultz, and Peter Yu for many helpful comments. I would also like to thank Dean David Crago and Interim Dean Steve Veltri of the Pettit College of Law at Ohio Northern University for generous financial support.
O’Melinn, L.S. (2015), "Property without Bounds and the Mythology of Common Law Copyright", Special Issue: Thinking and Rethinking Intellectual Property (Studies in Law, Politics, and Society, Vol. 67), Emerald Group Publishing Limited, pp. 75-117. https://doi.org/10.1108/S1059-433720150000067004Download as .RIS
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