Maurizio Borghi: “Reconstructing fairness – The problem with fair use exclusivity”

Working Paper No. 04-2019

October 2019

Exemptions from copyright infringement play a pivotal role in the new digital economy. Tech companies rely heavily on fair use, fair dealing and other statutory exceptions, as well as on safe-harbour limitations of liability. For many businesses, the availability of a copyright exemption represents an asset that is as valuable as other intellectual property rights in their portfolio. This trend is also reflected at policy level worldwide, where so-called ‘fair use industries’ push for stronger exemptions by use of strategies and arguments that are very similar (albeit specular) to those applied by traditional copyright industries to lobby for stronger copyright protection.

This changing role of copyright exemptions carries important policy and doctrinal implications, which form the subject of this chapter. The key point of discussion is that beneficiaries of exemptions are often in a position to create proprietary or quasi-proprietary entitlements around their copyright-exempted uses, thereby turning exemptions into de facto exclusive rights in reverse. I call this phenomenon ‘fair use exclusivity.’ The chapter considers some paradigmatic examples of fair use exclusivity. It then discusses, from a normative perspective, possible approaches that legislators can adopt to ensure a fair, unbiased functioning of copyright exemptions in the new digital environment.

Keywords: copyright, fair use, exceptions and limitations, Big Data, Google, private copy

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