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Article: Fair Use as a Collective User Right

TitleFair Use as a Collective User Right
Authors
KeywordsCopyright
Fair use
Collective right
Affirmative defense
Public interest
Issue Date2011
PublisherNorth Carolina Law Review Association. The Journal's web site is located at http://nclawreview.net
Citation
North Carolina Law Review, 2011, v. 90, p. 125-201 How to Cite?
AbstractThis Article puts forward a new theory that reconceptualizes fair use as a collective user right in copyright law. It first argues that the fair use doctrine has not yet unleashed its full potential in protecting the public interest. The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has also lead to a wide range of harms to the public interest in the free flow of information and knowledge. Against this backdrop, this Article explores the ways in which fair use can be revitalized to protect the public interest. It argues for repudiating the narrow-minded characterization of fair use as an individual right. It then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances participation in communicative actions in what I call intangible public space. From this perspective, section 107 of the Copyright Act should be read as conferring a collective right to fair use upon members of the public. Moreover, this Article shows the power of the collective right to fair use in generating a new legal approach that will enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.
Persistent Identifierhttp://hdl.handle.net/10722/144483
ISSN
2007 SCImago Journal Rankings: 0.123
SSRN

 

DC FieldValueLanguage
dc.contributor.authorSun, H-
dc.date.accessioned2012-01-30T06:51:42Z-
dc.date.available2012-01-30T06:51:42Z-
dc.date.issued2011-
dc.identifier.citationNorth Carolina Law Review, 2011, v. 90, p. 125-201-
dc.identifier.issn0029-2524-
dc.identifier.urihttp://hdl.handle.net/10722/144483-
dc.description.abstractThis Article puts forward a new theory that reconceptualizes fair use as a collective user right in copyright law. It first argues that the fair use doctrine has not yet unleashed its full potential in protecting the public interest. The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has also lead to a wide range of harms to the public interest in the free flow of information and knowledge. Against this backdrop, this Article explores the ways in which fair use can be revitalized to protect the public interest. It argues for repudiating the narrow-minded characterization of fair use as an individual right. It then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances participation in communicative actions in what I call intangible public space. From this perspective, section 107 of the Copyright Act should be read as conferring a collective right to fair use upon members of the public. Moreover, this Article shows the power of the collective right to fair use in generating a new legal approach that will enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.-
dc.languageeng-
dc.publisherNorth Carolina Law Review Association. The Journal's web site is located at http://nclawreview.net-
dc.relation.ispartofNorth Carolina Law Review-
dc.rightsCreative Commons: Attribution 3.0 Hong Kong License-
dc.subjectCopyright-
dc.subjectFair use-
dc.subjectCollective right-
dc.subjectAffirmative defense-
dc.subjectPublic interest-
dc.titleFair Use as a Collective User Righten_US
dc.typeArticleen_US
dc.identifier.emailSun, H: haochen@hku.hk-
dc.description.naturepostprint-
dc.identifier.hkuros200234-
dc.identifier.volume90-
dc.identifier.spage125-
dc.identifier.epage201-
dc.identifier.ssrn1985375-
dc.identifier.hkulrp2012/008-

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