Beyond Fair Use

Intellectual Property, Copyright and Trademark, Networks, the Internet, and Cloud Computing and Internet

Article Snapshot


Gideon Parchomovsky and Philip J. Weiser


Cornell Law Review, Vol. 96, No. 1, pp. 91-138, 2010


The authors give an alternate approach to resolving access to copyright content according to the policies of fair use.

Policy Relevance

Various methods have been put forth to save the doctrine of fair use as it relates to use of copyrighted works. However, this approach has several advantages over those already proposed.

Main Points

  • “Fair Use” doctrine allows a copyrighted work to be used by someone other than the copyright holder so that the copyright does not stifle the creativity that it was intended to create.
  • Fair Use doctrine is very vague and open ended. Many see this as a major flaw because users are discouraged from using copyrighted material at all if there is any chance of violating the copyright. The Digital Millennium Copyright Act (DMCA) made fair use even more limited in its scope.
  • Rather than try to advocate a reform of fair use as other articles have, this article advocates for user privileges that will augment the fair use doctrine.
  • The user privileges for access to content would be overlaid with a regulatory scheme requiring content owners to provide clear notification of the substance and scope of privileges. This would create more informed choices.
  • If the regulatory scheme failed, Congress could specify which use privileges content owners would have to provide. However, this step would only be taken if the regulatory scheme were unsuccessful.
  • Advantages of approaching Fair Use as this article proposes:
    • More potential for greater and improved opportunities through creativity and experimentation.
    • A better chance of creating certainty for uses of digital content.
    • More likely to be attained—lower implementation costs.
    • Would not generate an arms race between protectors of content and hackers.
  • Real world examples of content owners making access to content for free or very cheap show how privileges can complement fair use.
  • This method provides a “nudge and norm entrepreneurship” model to allow the market to do most of the heavy lifting of providing customers with greater privileges.


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