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Brennan, Timothy J. --- "‘Fair use’ as policy instrument" [2005] ELECD 91; in Takeyama, N. Lisa; Gordon, J. Wendy; Towse, Ruth (eds), "Developments in the Economics of Copyright" (Edward Elgar Publishing, 2005)

Book Title: Developments in the Economics of Copyright

Editor(s): Takeyama, N. Lisa; Gordon, J. Wendy; Towse, Ruth

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781843769309

Section: Chapter 5

Section Title: ‘Fair use’ as policy instrument

Author(s): Brennan, Timothy J.

Number of pages: 23

Extract:

5. `Fair use' as policy instrument
Timothy J. Brennan

5.1 INTRODUCTION
Battles over copyright are typically framed as between providing more
access for the public to created works and giving profits to those who
created the works. To this observer of copyright policy discussions, grant-
ing any weight to the latter side of this tradeoff often seems to come grudg-
ingly. It is as if only a minimal degree of fairness justifies consideration of
creators in the balance at all.
These battles between access rights and exclusion rights take place on
many intellectual property fronts. Seemingly innocuous or obvious busi-
ness practices have been patented, leading to concerns that they will be
unnecessarily monopolized and promote collusion (Ciminello 2000).1
Cases involving MP3 music filesharing and DVD decoding cases suggest a
conflict between listeners and producers regarding access to music and
films and on broadband deployment.2 The DVD cases also reflect contro-
versies regarding the Digital Millennium Copyright Act's restrictions on
access to decryption technology.3 The Supreme Court ruled against con-
tentions that extending copyright an additional twenty years violates the
Constitutional mandate `[t]o promote the Progress of Science and useful
Arts by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries.'4
One facet of these controversies is whether viewing copyrighted works
as special, e.g., as `cultural' goods, should change copyright doctrines, par-
ticularly to expand `fair use.' Fair use is defined statutorily as the ...


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