A Conceptual Basis for Justifying the Grant of an Exclusive Right
Is it possible to identify a conceptual basis that would support the granting of an exclusive right over digitised versions within the EU legal framework? This chapter proceeds to argue that the utilitarian doctrine of intellectual property law (and the incentive theory in particular), provides a conceptual basis that can justify the granting of exclusive rights over digitised versions. The discussion will focus upon the incentive theory as it has been developed in relation to copyright law. This is because copyright law provides the closest analogy for an exclusive right over a digitised version of a rare document, in the sense that both concern themselves with the protection of cultural content and informational goods. The discussion also explores the ability of the social planning theory of copyright law, to be a normative influence in the formulation of the proposed exclusive right.