The fair use of Fair use grows exponentially in the arsenal (small “a”) of copyright freedom litigators. In advising clients pre-litigation and in IP brainstorming sessions, clients often seek the moral as well as the legal justification to support the use and publication of materials that may raise copyright challenges.
In Lawrence Solum’s Legal Theory Blog, the January 15, 2012 law review article of Professor Haochen Sun, “Fair Use as a Collective Right” The article abstract provides the theory:
“This 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.”
Although Fair Use is nominally a defense, I sense a shifting of the burden of proof to the shoulders of copyright holders who seek to block the fair and moral distribution of intellectual capital and ideas.
