|Title:||Making Sense of Fair Use|
|Citation:||Netanel, N. W. (2011). Making sense of fair use. Lewis & Clark L. Rev., 15, 715.|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|Linked by:||Cotropia and Gibson (2014)|
|About the Data|
|Data Description:||68 court decisions on fair use between 2006 and 2010, with quantitative analysis from 1995.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||No|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in several recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine's chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts embrace of the transformative use doctrine. In' light of these developments, adding an historical dimension to a study of fair, use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.
Main Results of the Study
Over the past 20 years, the U.S. fair use doctrine has altered fundamentally, including moving from a focus on commercial use to greater emphasis on transformative use. Despite being perceived as an uncertain affirmative defence, historical analysis in light of statistical studies by Sag and Beebe as well as Samuelson's taxonomy of uses, reveals a greater consistency and determinancy.
Policy Implications as Stated By Author
The erratic nature of the fair use defence has been cited as the reason in many jurisdictions to not adopt similar legislation. However, this study reveals a much more consistent application. Thus international jurisdictions should not exclude a legislative fair use remedy on the basis of indeterminacy.
Coverage of Study
|Level of aggregation:||Court Decisions|
|Period of material under study:||2006-2010|