Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern Anglo-Saxon copyright law and the theoretical justifications that are often advocated for its continued existence and expansion. It then analyses how the proprietary and libertarian interests conflict in the context of four separate settings (a) U.S. Copyright law and the First Amendment; (b) digital copyright and the emergence of anti-circumvention measures; (c) copyright expansion in continental European systems and their understanding of expression, and (d) U.K. copyright law following the impact of the European Convention on Human Rights on the same. It also looks at the argument that since copyright is, in itself an instrument of free expression, a normative conflict is logically impossible. The paper concludes by identifying strategies for re-postulating the existent discourse and recognizing an increased role for value-based normative hierarchies, adopting a process of ,norm specification' used by courts in dealing with normative decisions during the process of constitutional interpretation.
Balganesh, Shyamkrishna, "Copyright and Free Expression: The Convergence of Conflicting Normative Frameworks" (2004). Faculty Scholarship at Penn Law. 713.
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