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Intellectual Property Rights

Innovation, Governance and the Institutional Environment

Edited by Birgitte Andersen

Intellectual Property Rights is cutting edge in addressing current debates affecting businesses, industry sectors and society today, and in focusing not only on the enabling welfare effects of IPR systems, but also on some of the possible adverse effects of IPR systems.
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Chapter 2: Public Interest and the Public Domain in an Era of Corporate Dominance

Fiona Macmillan


Fiona Macmillan ABSTRACT This chapter argues that copyright’s commodification of creativity has established a structure that enables the domination of cultural output by multinational media and entertainment corporations. It argues that the primary tools of the commodification process have been the alienability of the copyright interest, the long duration of copyright, its strong distribution rights, and the apparent demise of some of the most significant user rights. The consequent dominance of the media and entertainment corporations over cultural output has had the effect of contracting the public domain, while at the same time undermining the rationale for the existence of copyright. The chapter concludes by considering whether there are legal approaches either within the structure of copyright law or external to it that might be capable of remedying the consequences of copyright’s commodification of creativity and thus reclaiming a portion of the public domain. Keywords: Public interest, Public domain, Corporate dominance, Copyright and culture 1 COPYRIGHT’S COMMODIFICATION OF CREATIVITY I have argued in other places (Macmillan 1998, Macmillan 2002a, Macmillan 2002b) that copyright’s relationship to the concepts of creativity and culture, with which it is often rhetorically associated (Waldron 1993, p. 853), is most accurately viewed as an instrumental rather than a fundamental one.1 That is, copyright has been well used as an instrument for promoting trade in 46 Public interest and the public domain in an era of corporate dominance 47 the cultural output that comes within its purview. Accordingly, copyright deals with works in...

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