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Developments in the Economics of Copyright

Research and Analysis

Edited by Lisa N. Takeyama, Wendy J. Gordon and Ruth Towse

This innovative and insightful book, written by some of the leading academics in the field, advances research frontiers on intellectual property and copyright issues. Topics addressed include: peer-to-peer music file sharing, optimal fair use standards, the benefits of copyright collectives, copyright and market entry, alternatives to copyright, the impact of copyright on knowledge production, the proper balance between copyright and competition law, and the application of systematic principles to issues that arise at the periphery of intellectual property law – all with an eye toward economics.
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Chapter 5: ‘Fair use’ as policy instrument

Timothy J. Brennan


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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