Fair Use as a Collective User Right

North Carolina Law Review, Vol. 90, No. 125, 2011

University of Hong Kong Faculty of Law Research Paper No. 2012/008

78 Pages Posted: 15 Jan 2012 Last revised: 3 Feb 2012

See all articles by Haochen Sun

Haochen Sun

The University of Hong Kong - Faculty of Law

Date Written: January 14, 2012

Abstract

This Article puts forward a new theory that reconceptualizes fair use as a collective user right in copyright law. It first argues that the fair use doctrine has not yet unleashed its full potential in protecting the public interest. The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has also lead to a wide range of harms to the public interest in the free flow of information and knowledge.

Against this backdrop, this Article explores the ways in which fair use can be revitalized to protect the public interest. It argues for repudiating the narrow-minded characterization of fair use as an individual right. It then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances participation in communicative actions in what I call intangible public space. From this perspective, section 107 of the Copyright Act should be read as conferring a collective right to fair use upon members of the public. Moreover, this Article shows the power of the collective right to fair use in generating a new legal approach that will enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.

Keywords: copyright, fair use, collective right, affirmative defense, public interest

Suggested Citation

Sun, Haochen, Fair Use as a Collective User Right (January 14, 2012). North Carolina Law Review, Vol. 90, No. 125, 2011, University of Hong Kong Faculty of Law Research Paper No. 2012/008, Available at SSRN: https://ssrn.com/abstract=1985375

Haochen Sun (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://www0.hku.hk/law/faculty/staff/sun_haochen.html

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