Perfect Storm, The: Intellectual Property and Public Values

Intellectual Property

Article Snapshot


R. Polk Wagner


Fordham Law Review, Vol. 73, pg. 1107, 2005


This paper looks at how to advance the debate about fair use of copyrighted works.

Policy Relevance

The uncertainty of fair use means that it will not always make sense to focus on fair use to protect access to information. Other forces, like competition, might help more.

Main Points

  • Courts are likely to support fair use of copyright works, that is, the free use of parts of copyrighted works like music or literature, when the use has little impact on the market and is not part of a money-making venture.

  • As technology like the Internet makes copying easy, copyright owners and creators feel they are losing ground.As technology like digital rights management is used more often, consumers feels they are losing ground.
    • Each side is losing, and this leads to polarization and stronger demands.
    • Litigation becomes more frequent, as uncertainty makes it hard to settle cases.
    • Those who own more resources have an advantage.

  • The boundaries of fair use are very uncertain today, because of technology and because of scholars’ changing views about fair use. This uncertainty makes it unproductive to focus on fair use as a solution.

  • Economic and social forces other than fair use limit copyright control.
    • Some rules are not be worth enforcing, such as a rule against making copies for personal use.
    • Academics favor free exchange of information, and will urge limits on copyright.
    • Competition between creators limits copyright-based monopoly and encourage creators to give work away for free.

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