Fairness, Morality and Ordre Public in Intellectual Property
Show Less

Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
Buy Book in Print
Show Summary Details
You do not have access to this content

Chapter 3: Reconstructing fairness: the problem with fair use exclusivity

Maurizio Borghi


Exemptions from copyright infringement play a pivotal role in the new digital economy. Tech companies rely heavily on fair use, fair dealing and other statutory exceptions, as well as on safe-harbour limitations of liability. For many businesses, the availability of a copyright exemption represents an asset that is as valuable as other intellectual property rights in their portfolio. This trend is also reflected at policy level worldwide, where so-called ‘fair use industries’ push for stronger exemptions by use of strategies and arguments that are very similar (albeit specular) to those applied by traditional copyright industries to lobby for stronger copyright protection. This changing role of copyright exemptions carries important policy and doctrinal implications, which form the subject of this chapter. The key point of discussion is that beneficiaries of exemptions are often in a position to create proprietary or quasi-proprietary entitlements around their copyright-exempted uses, thereby turning exemptions into de facto exclusive rights in reverse. I call this phenomenon ‘fair use exclusivity’. The chapter considers some paradigmatic examples of fair use exclusivity. It then discusses, from a normative perspective, possible approaches that legislators can adopt to ensure a fair, unbiased functioning of copyright exemptions in the new digital environment.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information

or login to access all content.