Beyond Fair Use

Article Source: Cornell Law Review, Vol. 96, No. 1, pp. 91-138, 2010
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Time to Read: 2 minute read
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The authors give an alternate approach to resolving access to copyright content according to the policies of fair use.


Policy Relevance:

Various methods have been put forth to save the doctrine of fair use as it relates to use of copyrighted works. However, this approach has several advantages over those already proposed.


Key Takeaways:
  • “Fair Use” doctrine allows a copyrighted work to be used by someone other than the copyright holder so that the copyright does not stifle the creativity that it was intended to create.
  • Fair Use doctrine is very vague and open ended. Many see this as a major flaw because users are discouraged from using copyrighted material at all if there is any chance of violating the copyright. The Digital Millennium Copyright Act (DMCA) made fair use even more limited in its scope.
  • Rather than try to advocate a reform of fair use as other articles have, this article advocates for user privileges that will augment the fair use doctrine.
  • The user privileges for access to content would be overlaid with a regulatory scheme requiring content owners to provide clear notification of the substance and scope of privileges. This would create more informed choices.
  • If the regulatory scheme failed, Congress could specify which use privileges content owners would have to provide. However, this step would only be taken if the regulatory scheme were unsuccessful.
  • Advantages of approaching Fair Use as this article proposes:
    • More potential for greater and improved opportunities through creativity and experimentation.
    • A better chance of creating certainty for uses of digital content.
    • More likely to be attained—lower implementation costs.
    • Would not generate an arms race between protectors of content and hackers.
  • Real world examples of content owners making access to content for free or very cheap show how privileges can complement fair use.
  • This method provides a “nudge and norm entrepreneurship” model to allow the market to do most of the heavy lifting of providing customers with greater privileges.



Gideon Parchomovsky

About Gideon Parchomovsky

Gideon Parchomovsky specializes in intellectual property, property law, and cyber law. Parchomovsky has already made significant contributions to the field through his wide-ranging scholarship, having written numerous articles for major law reviews on property and liability rules, insider trading, trademarks, domain names, and patents. Most recently, he has been advocating the need for a comprehensive property theory and the need to introduce a value-oriented theory. Parchomovsky has received the A. Leo Levin Award presented to the best teacher of a first-year course.

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Philip J. Weiser

About Philip J. Weiser

Phil Weiser is the Hatfield Professor of Law and Telecommunications, and Executive Director and Founder of the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado. From June 2011-July 2016, Professor Weiser served as Dean after re-joining the Colorado faculty in June, 2011. From April 2010-June 2011, he served as the Senior Advisor for Technology and Innovation to the National Economic Council Director at the White House.