Authors: Niva Elkin-Koren and Orit Fischman Afori
Abstract: Exceptions and limitations to the rights of copyright owners aim to promote copyright goals in a rapidly changing world. Policymakers are often faced with the choice of either adopting an open-norm, such as fair use, to facilitate flexibility and adaptability, or opt for a strictly defined list of exceptions and limitations to facilitate more certainty and predictability. So far, this binary choice between bright-line rules and vague standards has created a deadlock.
This paper argues that in order to promote a reasoned implementation of fair use and serve both the purpose of copyright law and the rule of law, courts should subscribe to the doctrinal indeterminacy mandated by fair use, while at the same time encourage the implementation of concrete rules within that standard. Incorporating bottom-up norms, such as Codes of Fair Use Best Practices, in fair use analysis, would enable courts to do just that.
Codes of Fair Use Best Practices reflect a shared understanding as to the scope of permissible uses in particular fields of practice, where more specific norms of conduct are generated and implemented efficiently through bottom-up processes. Drawing on some lessons learned from self-regulation, we propose a theoretical and doctrinal framework for implementing Fair Use Best Practices in legal analysis.
We argue that norm building is a dynamic multi-faceted process, and that incorporating bottom-up norms in fair use analysis, would enhance the efficacy and legitimacy of copyright law. We further identify several legal implications of Fair Use Best Practices: one is to inform the legal interpretation of fair use or prepare the ground for legislation. Another legal function of Fair Use Best Practices is to provide the court with a benchmark when determining liability for copyright infringement. Here we introduce a Pragmatist Approach to fair use. This novel approach to fair use, shifts the focal point of legal analysis from a facts-intensive inquiry, which seeks to determine whether the use was fair or not, to reasonable compliance, using Fair Use Best Practices as a benchmark. At the doctrinal level, we show how the Pragmatist Approach to fair use could be implemented under the current law, by limiting liability for copyright infringement under doctrines such as “innocent infringer” or “reasonable conduct”.
Citation: Elkin-Koren, Niva and Fischman Afori, Orit, Taking Users’ Rights to the Next Level: A Pragmatist Approach to Fair Use (August 20, 2014). Cardozo Arts & Entertainment Law Journal, Vol. 33, 2014 Forthcoming.
Full Paper: http://ssrn.com/abstract=2483939
