Fairness, Morality and Ordre Public in Intellectual Property
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Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Chapter 2: Fairness for authors and performers: the role of law

Mary LaFrance


Considerations of fairness to authors and performers have played a central role in the development of copyright and neighboring rights policies in authors’ rights regimes such as that of the EU. In contrast, with only a handful of exceptions, such considerations have little influence on copyright policy in the US, which focuses on maximizing the copyright owner’s unfettered ability to exploit the work, regardless of whether that owner played any role in the work’s creation. Fairness in authors’ rights systems finds expression in moral rights, resale rights, and remuneration rights. In the US, only a few provisions in copyright law elevate the interests of authors over those of copyright owners. For the most part, the retained rights of creators and performers who surrender their copyrights depend on their bargaining power. However, in the entertainment industries, organized labor can significantly increase that power. Both systems have their flaws, and it is impossible to say that one regime is inherently better for authors and performers than the other. A system that maximizes the economic potential of a work at the expense of individual contributors’ rights can, indirectly, place those contributors in a strong bargaining position, while a system that gives individual creators more control over the exploitation of their work may limit the work’s ultimate economic potential but will guarantee those creators a continuing stake in its future.

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