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Hastings Communications and Entertainment Law Journal

Abstract

Do copyright owners have the right to hoard their creative works? The right to exclude on an individual basis is the keystone of copyright law, yet using copyright protection to prevent all public access to a work runs counter to the very premises upon which copyright law is based. This right to exclude the world from use of a creative work-referred to as the right to "hoard" by Justice O'Connor in Stewart v. Abend, is commonly traced to a Lochner-era tax case: Fox Film Corp. v. Doyal. This article examines the right to hoard and its origins in Fox Film, concluding that no such right can be properly read into the language of the case, and that the right to hoard in copyright law in fact remains an open question. Next, this article examines the compatibility of the right to hoard with both Lockean property theory and the economic utilitarian theory that underlies copyright law, ultimately concluding that both theories emphatically reject the possibility of an authorial right to hoard. Finally, this article posits a purely judiciary correction that could effectively eliminate the right to hoard on a domestic level without necessitating a change in the Copyright Act, as well as a potential international restriction on the right to hoard through an expansion of the appendix to the TRIPS Agreement.

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