Updating Fair Use for Innovators and Creators in the Digital Age: Two Targeted Reforms

Author(s): Jennifer Urban
Year: 2010

Abstract: In Parts I, II, and III of this first installment of our Report series, we discuss the critical role fair use plays in copyright’s balance between granting exclusive rights to creators and ensuring public benefits; how fair use has changed over time in order to accommodate new technologies and social changes; and where its limitations create roadblocks to innovation and creativity. In Part IV, we propose two limited reforms, (attached hereto as Appendix A):

• Updating Section 107 to provide better guidance to courts, creators, copyright holders, and innovators on how to interpret the statute in light of new technologies and new forms of art and media by adding a limited (and nonexclusive) set of additional uses to its preamble; and

• Reforming Sections 504 and 505 to reduce one of the greatest barriers to making fair use of copyrighted works: fears of excessive and unpredictable statutory damages and attorneys’ fees and costs. The unpredictability of these remedies can chill even the most intrepid follow-on users making the most conservative fair uses.

These reforms are limited in scope and general in application for an important reason: one of the great strengths of the American fair use doctrine is its flexibility in accommodating both new uses and new markets for copyright holders. This ability to adapt and change as needed to preserve copyright’s critical balance over time has been a hallmark of good copyright policy. As such, in many aspects it is most appropriate for
fair use to develop through court cases and community norms,2 which can flexibly take into account changes in technology, societal and community practices, and business models.

At the same time, fair use is frequently criticized for the tradeoff required by such flexibility: unpredictability.3 Because it can sometimes be difficult to predict with certainty whether a court will find a given use fair, and because the downside risk of high statutory damages, costs and fees is also unpredictable, follow-on creators can be prevented from making and distributing valuable works that rely on fair use.

There is no model that can completely remove unpredictability from a flexible system, though proper understanding of caselaw4 and community norms5 can help. This Report focuses on another important method for increasing predictability without unduly sacrificing flexibility: Congress can update the general Section 107 framework with targeted changes that promote consistency across jurisdictions, diminish key chilling effects on fair use, and increase efficiency by limiting the need for litigation, without putting in place specific parameters that might limit the flexibility of the doctrine over time. We have focused our suggested reforms on Congress’ ability to achieve these goals.

Keywords: digital copyright, fair use

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