Posted: 10 Dec 1996
A combination of powerful new technologies and existing legal doctrines threatens to reduce the scope of copyright's fair use defense in digital intermedia. In place of fair use, these influences will give rise to a system of fared use. Fared use seems certain to improve the efficiency of copyright law. It raises questions of equity, however, by offering copyright owners increased compensation without guaranteeing the public increased access to copyrighted works. This paper addresses those concerns. Fared use would make copyrighted materials in digital intermedia available to the public under a reciprocal quasi-compulsory license. Somewhat paradoxically, this license offers consumers cheaper and better access to such copyrighted works precisely because it would require them to pay for uses that, in other media, the fair use defense would cover. Fared use would give copyright owners more licensing opportunities, but increase the risk of objectionable reuses. This projected public bargain, the default rule under fared use, largely flows from combining automated rights management with current law. But this same technology will make it much easier for providers and consumers of copyrighted information to reach and enforce alternative, private agreements. To the extent that it threatens to preempt this new-found freedom, copyright law should step aside. Only widespread experimentation will determine which information rights best suit the digital intermedia.
Suggested Citation: Suggested Citation
Bell, Tom W., Fair Use Vs. Fared Use: The Impact of Automated Rights Management on Copyright's Fair Use Doctrine. Available at SSRN: https://ssrn.com/abstract=11456