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 4: Fairness vs. welfare in the discussion of copyright laws and policies: royalties for the resale of artworks as a case study

Antoni Rubí-Puig

Abstract

Resale royalties for authors of original artworks (droit de suite) provide an interesting case study to discuss interactions between fairness and maximization of social welfare within the realm of copyright law. On the one hand, resale royalties have been advocated and finally established by resorting to notions of fairness and distributive justice for visual artists and their heirs; on the other hand, they have been fiercely criticized from a traditional law and economics perspective as inefficient and not welfare enhancing. After comparing the explanatory advantages of both perspectives to analyze rules on resale royalties such as in Europe, Directive 2001/84/EC of 27 September 2001, this chapter addresses how more recent economic approaches have explored fairness preferences, reciprocity, and altruistic behavior. It also discusses how they have integrated distributive justice concerns into behavioral models. These more refined models can offer a more accurate account of copyright laws and policies in terms of both descriptive and predictive power.

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