Fair Use For Free, or Permitted-but-Paid?

Abstract

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore “free” in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair use is an on/off switch: either the challenged use is an infringement of copyright or it is a fair use, which section 107 declares “is not an infringement of copyright.” As a result, either the copyright owner can stop the use, or the user not only is dispensed from obtaining permission, but also owes no compensation for the use. I contend that fair use for free should be available only where a second author copies in the creation of a new work (instances which I will call productive uses). By contrast, when the entire work is copied for essentially distributive purposes, courts and legislatures should sometimes allow the use, but subject it to an obligation to compensate authors and rights holders. This is not a radical idea: the United States is in fact an outlier in the broader international landscape of copyright exceptions. Many countries have permittedbut-paid regimes for various uses, including those by libraries, educational institutions, and technologies. Indeed, the United States has some as well, particularly respecting new technological modes of dissemination. For many authors and other members of the creative communities, while their works stoke the engines of others’ enterprises, the Internet age has proffered more rags than riches. Creators should be compensated for the non-creative reuse of their works. © 2014 Jane C. Ginsburg. † Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia Law School. Many thanks for research assistance to Trey Brewer, Arjun Jaikumar, and Olena Ripnick, all Columbia Law School class of 2014. Thanks also for observations and criticisms to June Besek, Jack Browning, Irene Calboli, David Carson, Jacqueline Charlesworth, Susy Frankel, Wendy J. Gordon, Brad Greenberg, Lital Helman, Bert Lazerow, Yafit Lev-Aretz, Jessica Litman, Tony Reese, Pamela Samuelson, Paul Spera, Eva Subotnik, and Edouard Treppoz, and to Shyamkrishna Balganesh, Christopher Yoo, and the participants in the University of Pennsylvania copyright colloquium; to Jennifer Rothman and Jay Dougherty and the participants in the Loyola Law School faculty workshop, and to my colleagues at the Columbia Law School faculty workshop. Much gratitude to Barton Beebe for sharing his database of fair use cases. This article benefited from the support of the Philippe P. Dauman Faculty Research Fund. 1384 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1383