Beyond Fair Use

48 Pages Posted: 23 Feb 2010 Last revised: 13 May 2014

Phil Weiser

University of Colorado Law School

Gideon Parchomovsky

University of Pennsylvania Law School; Bar Ilan University - Faculty of Law

Date Written: November 30, 2010

Abstract

For centuries, the fair use doctrine has been the main - if not the exclusive - bastion of user rights. Originating in the English court of equity, the doctrine permitted users under appropriate circumstances to employ copyrighted content without consent from the rightsholder. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of such measures even for fair use purposes, has diminished the ability of fair use to act as a counterweight to a copyright owner’s rights in the digital age.

Recognizing the relatively precarious state of the fair use doctrine, many copyright scholars have rushed to resuscitate the doctrine, offering various ways to revamp fair use. As this Article makes clear, these proposals fall short of the mark. To address the shortcomings of the fair use doctrine in the digital age, this Article reconceives of the policy challenge and takes a fundamentally different tack. Rather than tinkering with the fair use doctrine, this Article proposes the creation of a system of new user privileges that would supplement fair use. Specifically, it crafts a framework of adaptive regulation that would cause copyright owners to dramatically increase the access and use opportunities granted to users. This framework would do so by requiring content owners and distributors to acknowledge user needs and even compete among themselves over the creation of new user liberties. Such an approach, this Article explains, is superior to rival suggestions and can best assure ongoing technological development and the preservation of user privileges in the digital age.

Keywords: Fair Use, DMCA, Copyright Act, FTC, DRM

JEL Classification: L51, K00

Suggested Citation

Weiser, Phil and Parchomovsky, Gideon, Beyond Fair Use (November 30, 2010). Cornell Law Review, Vol. 96, p. 91, 2011; U of Colorado Law Legal Studies Research Paper No. 10-04; U of Penn Law School, Public Law Research Paper No. 10-15. Available at SSRN: https://ssrn.com/abstract=1557242

Phil Weiser (Contact Author)

University of Colorado Law School ( email )

401 UCB
Boulder, CO 80309
United States

Gideon Parchomovsky

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-898-1603 (Phone)

Bar Ilan University - Faculty of Law ( email )

Ramat Gan 52900
Israel
972-2-5317078 (Phone)

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