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This chapter examines the interaction between copyright and the concept of alienability to show that it holds important structural and normative lessons for our understanding of the nature of the copyright entitlement, and its limitations. My use of the word ‘interaction’ is deliberate here, since my focus is not just on the question of whether and how inalienability restrictions internal to copyright doctrine motivate our theoretical understanding of copyright and its allied rights (for example, moral rights), a project that others have focused on previously. The chapter will instead attempt to understand how the copyright entitlement has addressed the basic common law principle (underlying the idea of property) that free alienability ought to remain a default, even if that principle originates outside the domain of copyright doctrine.

More specifically, I look at the interaction in three contexts involving the copyright entitlement, each of varying functional amplitude. The first context involves the rather straightforward manifestation of alienability in copyright’s core apparatus, its exclusive rights. While the law has always allowed for alienability here, we see interesting debates about the forms in which such alienability may manifest itself. The second context involves the physical manifestation of the copyright entitlement, that is the chattel in which it is embodied, and the restrictions that copyright may (or put more precisely, may not) impose on its alienability. Much of this interaction is contained in the origins of the ‘first sale’ doctrine, which emanates from the law’s fundamental protection of the basic alienability of the physical embodiment. The third context involves a narrower dimension of the copyright entitlement, namely its conferral of the right to sue for infringement on its holder. In this manifestation, copyright bears a close resemblance to an ordinary actionable claim, which introduces a host of additional considerations from debates over the alienability of actionable claims into our understanding of the copyright entitlement. Each of these interactions between copyright and the idea of alienability has played an important role in defining the scope of copyright’s peripheries as a functional matter. Additionally though, by telling us what copyright is not, they hold important conceptual and normative lessons for what copyright actually is, which this chapter will attempt to unravel.

The chapter unfolds in three sections. Section one will begin with a brief overview of alienability’s role in property, and the idea of market inalienability. Section two then moves to understanding the interaction between copyright and alienability at three different levels: in terms of its exclusive rights, through its possible restrictions on the physical embodiment, and in its manifestation as an actionable claim. Finally, section three tries to extract a few important analytical and normative lessons for copyright that flow from these interactions.


Intellectual Property Law | Law


This material has been published in "Concepts of Property in Intellectual Property Law" edited by Helena Howe and Jonathan Griffiths. This version is free to view and download for private research and study only. Not for re-distribution or re-use.