Research and Analysis
Edited by Lisa N. Takeyama, Wendy J. Gordon and Ruth Towse
Chapter 5: ‘Fair use’ as policy instrument
Timothy J. Brennan INTRODUCTION Battles over copyright are typically framed as between providing more access for the public to created works and giving proﬁts to those who created the works. To this observer of copyright policy discussions, granting any weight to the latter side of this tradeoﬀ often seems to come grudgingly. It is as if only a minimal degree of fairness justiﬁes consideration of creators in the balance at all. These battles between access rights and exclusion rights take place on many intellectual property fronts. Seemingly innocuous or obvious business practices have been patented, leading to concerns that they will be unnecessarily monopolized and promote collusion (Ciminello 2000).1 Cases involving MP3 music ﬁlesharing and DVD decoding cases suggest a conﬂict between listeners and producers regarding access to music and ﬁlms and on broadband deployment.2 The DVD cases also reﬂect controversies regarding the Digital Millennium Copyright Act’s restrictions on access to decryption technology.3 The Supreme Court ruled against contentions that extending copyright an additional twenty years violates the Constitutional mandate ‘[t]o promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’4 One facet of these controversies is whether viewing copyrighted works as special, e.g., as ‘cultural’ goods, should change copyright doctrines, particularly to expand ‘fair use.’ Fair use is deﬁned statutorily as the right to copy or use copyrighted works in ways that would otherwise lead to...
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