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.
Stephen M. McJohn,
Fair Use and Privatization in Copyright,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol35/iss1/3