San Diego Law Review

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The Internet has spurred a debate over whether the fair use doctrine of copyright should be narrowed. This article argues against narrowing. Advocates of a market approach to copyright argue that the fair use doctrine is confusing, inefficient, and unjust to producers, amounting to "a compulsory license provision with a royalty of zero." Many argue that real property rules may apply well to copyright issues. In contrast, the author illustrates differences between real and intellectual property, and advocates a "balancing view." This approach would achieve strong protection for copyrightable aspects of an intellectual product without unfairly limiting the use of its non-copyrightable components. Fair use, the author concludes, is an increasingly essential and fair aspect of intellectual property the digital age.

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