The Idea of a Use Right Association of Law, Property & Society Annual Meeting 2010 Alina Ng March 5, 2010

Substantial and unreasonable interference with the use and enjoyment of land causes annoyance to another’s use & enjoyment of land may be abated balance of competing interests Nuisance

Allows the Courts to enquire into the social utility of the alleged tort-feasor’s conduct and weigh that conduct against its social cost

Legitimizes conflicting use of a resource Manage uses of resources to achieve the most socially desirable outcome

§106 Copyright Act (1)Reproduce (2)Prepare derivative works (3)Distribute by sale, transfer of ownership, rental, lease or lending (4)Publicly perform (5)Publicly display (6)Perform publicly by means of digital audio transmission

§107 Copyright Act (1)Purpose and character of use (2)Nature of the copyrighted work (3)Amount and substantiality of work used (4)Effect of use upon potential market for or value of work

“The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Campbell v.Acuff-Rose Music, 510 U.S. 569 (1994)

Market effect seems almost determinative Substitutability

use rights for the copyright system must allow social uses of information as a resource to encourage diverse forms of authorship and creative activity

rights under the copyright act facilitate a production and dissemination function by emphasizing market impact in the fair use analysis, the copyright system undermines the institutional role of property law to protect the author, and encourage creative activity and authorship for the purposes of progress and development

Proposal the idea of a use right in the copyright system should: a)as in the law of nuisance, require a balance of competing interests in use of information as a resource for progress and development; and, b)involve an enquiry into the reasonableness of exercises of entitlements in literary and artistic works by copyright owners.

We may achieve the goals of the copyright system by using a similar test (as used in the law of nuisance) to balance competing rights in the use and enjoyment of informational resources

The trespass / nuisance distinction show that copyright cannot be about excluding use of competing interests in information conserve / preserve resources exclusion strategy protect private rights don’t need a reason to exclude in rem aims to protect natural right right arises through relationship with property transfer of rights through market injunction Trespass manage competing use of resources governance strategy protect social rights reasonable use in personam aims to achieve economic efficiency right arises through sanctions provided by courts and law transfer of rights through courts injunction / damages (or payment for use) Nuisance

Information as a resource for progress should be subject to various use rights rather than exclusive rights against the rest of the world

Thank You