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No LawIntellectual Property in the Image of an Absolute First Amendment$
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David L. Lange and H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780804745789

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804745789.001.0001

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“Exclusive Rights” and the Constitution

“Exclusive Rights” and the Constitution

(p.108) Chapter 4 “Exclusive Rights” and the Constitution
No Law
Stanford University Press

The inquiry in this book focuses on the limitations imposed on expression by the concept and practice of exclusivity under current intellectual property regimes—regimes that routinely forbid appropriation of expressive works in the absence of a license. These limitations have led to a conflict between the regimes and the Constitution—a conflict in multiple dimensions, in which interests in property are pitted against freedom of expression. Chapters 1–3 examined the regimes themselves. This chapter now turns to a more deliberate examination of the regimes from within the perspective offered by the Constitution. It addresses the question of why it is that a conflict as obvious as the one being discussed has not yet been the subject of more deliberate efforts by Congress and the courts to resolve it.

Keywords:   exclusivity, intellectual property regimes, appropriation, Constitution, freedom of expression

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