Fairer Uses

13 Pages Posted: 19 Jun 2016

See all articles by Jessica M. Silbey

Jessica M. Silbey

Northeastern University School of Law

Date Written: 2016


A response to Professor Joseph Liu’s paper on Fair Use, Notice Failure, and the Limits of Copyright as Property, this essay challenges Professor Liu to go even farther in his analysis and protection of the everyday audience of copyright works. In describing and analyzing what I term “fairer uses” on the basis of qualitative data from interviews of artists and authors who make and rely on copyrighted works for their own creativity and professional well-being, I support Professor Liu’s advocacy for maintaining “fuzzy boundaries” of fair use. Based on evidence from grounded practice of professional creators, their expansive application of fair use evidences a higher tolerance for infringement, a desire for fair remuneration as a dignitary matter rather than to satisfy investment-backed expectations, and overall “reasonableness” in the application of copyright law. As Liu documents, in the digital age more than ever “fairer uses” are more critical to fomenting creativity, self-expression and market-innovation of copyrighted works.

Keywords: intellectual property, copyright, fair use, empirical legal studies, trademark, notice, property

Suggested Citation

Silbey, Jessica M., Fairer Uses (2016). Boston University Law Review, Vol. 96, Forthcoming; Northeastern University School of Law Research Paper No. 268-2016. Available at SSRN: https://ssrn.com/abstract=2796735

Jessica M. Silbey (Contact Author)

Northeastern University School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

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