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Rethinking Intellectual Property

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini

Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.
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Chapter 3: From art to technology: copyright expansion and barriers: the evolving relation ‘right v. access’

Balancing Conflicts of Interest in the Constitutional Paradigm

Gustavo Ghidini


In the epochs prior to the Gutenberg revolution, the authors of literary, artistic, and scientific works were not granted own rights of economic utilization over the works they had created. Consequently their ‘labour condition’ – and economic status – depended either on the contractual terms imposed by publishers and booksellers,1 or the benign support of patrons (see below).

The modern copyright paradigm, which grants authors exclusive (and assignable) rights of utilization of their works, emerged with the advent of a publishing industry in the wake of the invention of a breakthrough technology: the moveable print type and the equally decisive invention of the book format in octavo by Aldo Manuzio.2 In truth, limited rights for authors had already made their first appearance as far back as the Renaissance, more precisely in the form of the privileges afforded by the Venetian Republic whereby printers could not publish the works of living authors without the latters’ consent. Then, the Statute of Anne, the most organic forerunner of modern copyright, granted protection to authors in terms of equal rights3 and no longer as a discretionary privilege. It was granted through a legal instrument that had the same general nature and rationale – exclusive right to copy and publish as a defence against free riding – as the privilege that had therefore been afforded to printers and publishers. These authors’ own rights were granted – as Bill Cornish poignantly notes – at the request of the Stationer’s Company ‘as a vehicle for advancing...

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