Rulifying Fair Use

34 Pages Posted: 27 Mar 2016

See all articles by Niva Elkin-Koren

Niva Elkin-Koren

Tel-Aviv University - Faculty of Law

Orit Fischman Afori

College of Management Academic Studies Law School

Date Written: February 20, 2016


Fair use is a statutory legal standard, which authorizes the courts to determine whether a use of a copyrighted work is permissible without a license. The open-ended nature of fair use enabled copyright law to remain flexible and adaptable to the changing circumstances. At the same time, however, flexibility creates high level of uncertainty regarding permissible uses, which may lead to a detrimental chilling effect. Consequently, while courts, scholars and practitioners strive for more certainty in fair use analysis, they are also concerned about losing the flexibility which comes with it.

Does fair use mandate case-specific decision-making, or does it also allow some elaboration into rules and guidelines? A recent decision by the Eleventh Circuit brought this issue to the forefront of legal discourse. In Cambridge Univ. Press v. Patton, the Court of Appeals repudiated the attempt made by the lower court to offer a rule-like elaboration of fair-use for educational purposes. This Article argues that the court’s rigid approach in Cambridge Univ. Press v. Patton reflects a misconception of the rules/standards distinction. The Article challenges the court’s binary approach to rules and standards, arguing that they should not be treated as mutually exclusive. While legal scholarship has generally focused on standardization of rules, i.e. elevating concrete rules to a higher level of abstraction, the opposite process of rulifying standards has been understudied. It is the purpose of this Article to fill this gap by offering a normative framework for rulifying fair use.

This Article argues that the the open-ended nature of fair use should not be viewed as preventing courts from specifying the abstract standard into rules. Quite the contrary, the objective of copyright law mandates the courts to elaborate the fair use standard into rules for particular creative contexts through common law adjudication.

The Article begins by introducing the classic rule/standard dichotomy and recent challenges in legal theory. In Part II we argue that rulification of standards should be understood within the common-law tradition of adjudication. Part III argues that the view of fair use as a permissive standard, for which rulification is allowed, is supported both by the legislative history of fair use and by the courts’ interpretation. Part IV argues that implementing fair use as a permissive standard advances the goals of copyright law and promotes the rule of law.

Keywords: Copyright, Fair Use, Rules v. Standards, Common Law

Suggested Citation

Elkin-Koren, Niva and Fischman Afori, Orit, Rulifying Fair Use (February 20, 2016). Arizona Law Review, Forthcoming, Available at SSRN:

Niva Elkin-Koren

Tel-Aviv University - Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 6997801

Orit Fischman Afori (Contact Author)

College of Management Academic Studies Law School ( email )

7 Rabin Blvd.
Rishon Lezion, 75190


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