The importance of fair use to parties across the IP policy spectrum contrasts with the divergent views on any specific contention of fair use.

Professor Polk Wagner from Pennsylvania Law School posits that the forcefulness of disagreements on fair use arise from uncertainty surrounding the doctrine; in turn, this uncertainty results in a perception of loss by copyright holders and users. Uncertainty and loss perception however can be curbed by strengthening certainty (such as simplifying the four factor test) , and better recognizing other means of accessing or using copyrighted information. The Perfect Storm: IP and Public Values, 74 Fordham L. Rev. 423, 429 (2005).

Causes of uncertainty in fair use include changes such as rapidly progressing technology and new classes of works and uses not readily categorized. 427. There is also some concern in response to the DMCA, which “may or may not change the legal contours of fair use. “ 427. Also: “Recent years have seen a number of uncertainty-stimulating behaviors, including overbroad claims of copyright infringement as well as unsupportable claims of fair use.” 427.

Professor Wagner describes fair use as a “small carve out, an exception, a set aside from the otherwise robust privileges offered to the owners of copyrights. “ 423. He then reminds us that fair use is only one of several factors that prevent information from being perfectly controlled. This is important, because even if fair use depreciates (either in perception or by common law processes), copyrighted information will still be available by:

Enforcement costs. Rights holders will not enforce rights where the cost of doing so would outweigh the returns.
Normative Limitations. The important role that social norms play in structuring behavior, both within and without a legal framework, is well documented… Few people think of asserting a proprietary right to the information they post on an email list, for example.
Marketplace effects... market pressures are likely to substantially limit the real monopoly power one might … expect...: Substitutes for copyrighted information will often exist. ..similar pressures may even induce market actors to give away their IP for low or no cost..
Technological-logistical limitations. Put simply, perfect control is impossible.

posted by Noel Le @ 3:46 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA

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