Tolerated Use

Abstract

Tolerated use is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging - an opt-in system for copyright holders, that is in property terms a rare species of ex post notice right. In addition, this paper proposes a several ways to deal with tolerated use problems, including a complement-driven theory of derivative works, and the copyright no action policy.

Keywords: copyright, tolerated use, fair use, secondary works