Reciprocal Share-Alike Exemptions in Copyright Law
Hebrew University of Jerusalem - Faculty of Law; Yale University Law School - Affiliate Fellow, Information Society Project
January, 30 2009
Cardozo Law Review, Vol. 30, No. 3, 2008
This article introduces a novel element to copyright law's exemptions' scheme, and particularly the fair use doctrine-a reciprocal share-alike requirement. I argue that beneficiaries of a copyright exemption should comply with a complementary set of ex-post reciprocal share-alike obligations that come on top of the exemption that they benefit from. Among other aspects, reciprocal share-alike obligations may trump contractual limitations and technological protection measures that are imposed by parties who relied on a copyright exemption in the course of their own use of copyrighted materials. Thus, fair use beneficiaries should be obliged to treat alike subsequent third parties who wish to access and use copyrighted materials - now located in their new "hosting institution" - for additional legitimate uses.
For example, if Google argues that its Book Project's scanning of entire copyrighted works are fair use, a similar exemption should apply to the benefit of future third parties who wish to use, for similar socially valuable purposes and under similar limitations, digital copies of books from Google's databases and applications. Google should also be prohibited from imposing technological protection measures and contractual obligations that revoke its reciprocal share-alike obligations. Similar quid-pro-quo schemes may apply in the context of content sharing platforms that initially rely on the Digital Millennium Copyright Act's (DMCA's) safe harbor for hosting services providers but later on impose proprietary restrictions on third parties who wish to reproduce and further use materials that were uploaded on the platform by end-users (e.g. as in the case of YouTube.com). And one could go on and apply this basic logic of a reciprocal share-alike quid-pro-quo on many other elements in copyright law's scheme of exemptions and limitations.
I argue that the making of copyright's exemptions reciprocal corresponds well and improves the economics of copyright and public-welfare considerations. Overall, reciprocal share-alike exemptions structure copyright law in manner that strikes a better balance between copyright's contribution (incentive) to cultural production and copyright's social cost - the burdens it imposes on future creators. As long as a reciprocal share-alike requirement is structured in a scope that maintains enough incentives to produce secondary works, it represents a social benefit that copyright law should capture. In addition, the article argues that reciprocal share-alike exemptions further enhance democratic, autonomy and distributive values that underlie a public-oriented vision of copyright law.
Number of Pages in PDF File: 50
Keywords: Copyright, Fair-Use, Reciprocity, Copyright Exemptions, Share-alike obligations, Google, Safe harbors for hosting services providers, You-Tube, Reciprocal share-alike exemptions, Digital Cultural Preservation, Social Responsibilities of Copyright OwnersAccepted Paper Series
Date posted: January 30, 2009
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