Copyright as tort

Avihay Dorfman*, Assaf Jacob

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review


In these pages we seek to integrate two claims. First, we argue that, taken to their logical conclusions, the considerations that support a strict form of protection for tangible property rights do not call for a similar form of protection when applied to the case of copyright. More dramatically, these considerations demand, on pain of glaring inconsistency, a substantially weaker protection for copyright. In pursuing this claim, we show that the form of protecting property rights (including rights in tangibles) is, to an important extent, a feature of certain normal, though contingent, facts about the human world. Second, the normative question concerning the selection of a desirable protection for creative works is most naturally pursued from a tort law perspective, in part because the normative structure of copyright law simply is that of tort law.

Original languageEnglish
Article number4
Pages (from-to)59-97
Number of pages39
JournalTheoretical inquiries in law
Issue number1
StatePublished - 3 Jan 2011


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