Beyond copyright: the annexation of looking by contract

K Law (General);KD England and Wales

McBride, Pauline ; Deazley, Ronan

University:University of Glasgow

Department:School of Law

关键词: Contract, copyright, websites, browse-wrap Terms of Use, Svensson, public domain, contract override, privilege.;   

Others  :  http://theses.gla.ac.uk/7157/1/2016mcbridephd.pdf

来源: University of Glasgow

【 摘 要 】

This thesis seeks to explore and map the public domain, conceived as an area free from the constraints of law and contract, in relation to information on open, publicly accessible websites.The existing rich literature concerning the ‘public domain’ focuses largely on the impact of the intellectual property regime. By adopting a novel conceptualisation of the public domain as freedom from law and contract, the thesis offers a broader perspective on freedoms and limitations on the use of information. While the existing ‘public domain’ literature does address the possibility for freedoms in relation to the use of information to be narrowed by contract, it focuses on the second order question of enforceability of terms. The first order question concerning the implications of the rules of contract formation is not thoroughly explored, a lack that this thesis seeks to address. The thesis relies on the contract law requirement of exchange to tease out both aspects of the public domain, that is, freedom from law and contract. In the process it addresses a significant gap in case law and literature, namely, the character of the benefit conferred by the website on the user. Relying on insights derived from the ruling of the European Court of Justice in Svensson the thesis offers a novel conceptualisation of the benefit and the mechanism of its conferral in order to explore the contractual significance of the exchange. The thesis suggests that the scope of the public domain is periled on the characterisation of the website’s response to the user’s request for content. It presents a contrasting account of the public domain according to two different characterisations of the website’s response, offering reasons to prefer the account of the public domain that best preserves freedom to look.