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Fixing Fair Use

Michael W. Carroll

American University Washington College of Law

North Carolina Law Review, Vol. 85, 2007
Villanova Law/Public Policy Research Paper No. 2006-21

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a 'no action' letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.

Number of Pages in PDF File: 68

Keywords: copyright, fair use, rules and standards, advisory opinions, free speech

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Date posted: November 16, 2006 ; Last revised: December 6, 2007

Suggested Citation

Carroll, Michael W., Fixing Fair Use. North Carolina Law Review, Vol. 85, 2007; Villanova Law/Public Policy Research Paper No. 2006-21. Available at SSRN: http://ssrn.com/abstract=945194

Contact Information

Michael W. Carroll (Contact Author)
American University Washington College of Law ( email )
4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States
202-274-4047 (Phone)
202-730-4756 (Fax)
HOME PAGE: http://www.wcl.american.edu/faculty/mcarroll/
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