Document Type
Book Chapter
Publication Date
2013
Editor(s)
Shyam Balganesh
ISBN
9781139013550
Publisher
Cambridge University Press
Language
en-US
Abstract
This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each variant conception. While the essay argues that there remain many issues that need to be resolved before making “harm” a formal prerequisite for liability in copyright, the essay takes steps toward resolving some of the open issues.
Recommended Citation
Wendy J. Gordon,
The Concept of 'Harm' in Copyright
,
in
Intellectual Property and the Common Law
452
(Shyam Balganesh ed.,
2013).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/1931
