Beyond Fair Use

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