The Pre-History of Fair Use :
“This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume – the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.
The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.”
URL : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1663366
Estimating the Economic Impact of Mass Digitization Projects on Copyright Holders: Evidence from the Google Book Search Litigation :
“Google Book Search (GBS) has captured the attention of many commentators and government officials, but even as they vigorously debate its legality, few of them have marshaled new facts to estimate its likely effects on publishing and other information markets. This Article challenges the conventional wisdom propounded by the U.S. and German governments, as well as Microsoft and other competitors of Google, concerning the likely economic impact of mass book-digitization projects. Originally advanced by publishing industry lobbying groups, the prevailing account of mass book-digitization projects is that they will devastate authors and publishers, just as Napster and its heirs have supposedly devastated musicians and music labels. Using the impact of GBS on the revenues and operating incomes of U.S. publishers believing themselves to be the most-affected by it, this Article finds no evidence of a negative impact upon them. To the contrary, it provides some evidence of a positive impact, and proposes further empirical research to identify the mechanisms of digitization’s economic impact.
The debate surrounding the GBS settlement is important to students, writers, researchers, and the general public, as it may decide whether a federal appellate court or even the U.S. Supreme Court allows the best research tool ever designed to survive. If the theory of Microsoft and some publishing trade associations is accepted, the courts may enjoin and destroy GBS, just as Napster was shut down a decade ago.
The Article aims at a preliminary estimate of the economic impact of mass digitization projects, using GBS as a case in point. It finds little support for the much-discussed hypothesis of the Association of American Publishers and Google’s competitors that the mass digitization of major U.S. libraries will reduce the revenues and profits of the most-affected publishers. In fact, the revenues and profits of the publishers who believe themselves to be most aggrieved by GBS, as measured by their willingness to file suit against Google for copyright infringement, increased at a faster rate after the project began, as compared to before its commencement. The rate of growth by publishers most affected by GBS is greater than the growth of the overall U.S. economy or of retail sales. Thus, the very publishers that have sued Google have seen their revenues grow faster than retail sales or the U.S. economy as a whole (measured by gross domestic product). This finding parallels some of the research that has been done since the Napster case on the economic impact of peer-to-peer file sharing on sales of recorded music. Future studies may provide a more granular estimate of the economic impact of frequent downloads or displays of pages of particular books on the sales of such books.”
URL : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1634126
Pushing Libraries and Archives to the Edge of the Law :
“The ability to digitize hard copies, the proliferation of born digital content, and access to online distribution holds the promise of improved access to archival materials. Despite these advances, libraries and archives are increasingly hindered in providing this access by the legal issues surrounding their collections. However, this unfortunate problem can be resolved with a mixture of good policy, careful action, clarification of uncertain legal implications, and a reliance on the protections afforded to libraries and archives by the law.
This paper explores the legal issues faced by archivists and librarians in digitizing and distributing their materials. Through a discussion of current archiving practices, this paper walks readers though the relevant sections of the copyright act, as well as other implicated areas of the law. By showing potential sites of legal conflict, engaging difficulties with seeking permission to use library and archival content, and suggesting areas where archivists can push the boundaries of their rights more aggressively, this paper provides a glimpse of the legal landscape surrounding digital archiving, and offers suggestions on how to successfully navigate it. It is my sincere hope that this effort can empower librarians and archivists to make full use of their collections, to assert the full scope of their rights under the law, and to become advocates helping to shape the national discussion over the future of digital collections.”
URL : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1659853
Economic Contribution of Industries Relying on Fair Use :
This report employs the latest data available to answer a very important question: what contribution is made to our economy by industries that depend on the limitations to copyright protection when engaged in commerce? As this report shows, such industries make a huge contribution. In an era of highly competitive markets for information goods and services, changes to the boundaries of copyright protection will alter
the economic landscape. Broader regulation of economic activity by copyright might encourage additional creativity, but it will deter certain types of technology innovation, and may undermine competition and
free expression. Our information policy must therefore balance the incentives that IP regulation creates against the disincentives that result. For 300 years, copyright law has recognized this fragile balance.
URL : http://www.wired.com/images_blogs/threatlevel/2010/04/fairuseeconomy.pdf
Beyond Fair Use :
For centuries, the fair use doctrine has been the main – if not the exclusive – bastion of user rights. Originating in the English court of equity, the doctrine permitted users under appropriate circumstances to employ copyrighted content without consent from the rightsholder. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of such measures even for fair use purposes, has diminished the ability of fair use to act as a counterweight to a copyright owner’s rights in the digital age.
Recognizing the relatively precarious state of the fair use doctrine, many copyright scholars have rushed to resuscitate the doctrine, offering various ways to revamp fair use. As this Article makes clear, these proposals fall short of the mark. To address the shortcomings of the fair use doctrine in the digital age, this Article reconceives of the policy challenge and takes a fundamentally different tack. Rather than tinkering with the fair use doctrine, this Article proposes the creation of a system of new user privileges that would supplement fair use. Specifically, it crafts a framework of adaptive regulation that would cause copyright owners to dramatically increase the access and use opportunities granted to users. This framework would do so by requiring content owners and distributors to acknowledge user needs and even compete among themselves over the creation of new user liberties. Such an approach, this Article explains, is superior to rival suggestions and can best assure ongoing technological development and the preservation of user privileges in the digital age.
URL : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1557242