Academic journal article Boston University Law Review

Fair Use, Notice Failure, and the Limits of Copyright as Property

Academic journal article Boston University Law Review

Fair Use, Notice Failure, and the Limits of Copyright as Property

Article excerpt

I. NOTICE FAILURE AND FAIR USE

In Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk,1 James Bessen and Michael Meurer take a comprehensive empirical look at how well the U.S. patent system succeeds in rewarding innovators and encouraging investment in innovation. Bessen and Meurer accept that the patent system seeks to further its goals through creating a system of property rights.2 They then argue that the patent system fails notably in fulfilling one of the most basic functions of a property system, namely providing third-parties clear notice of the existence, validity, ownership, and scope of those property rights.3 They then document extensively how this "notice failure" has the effect of discouraging innovation in ways that are at odds with the overall purpose of the patent system.4

In this essay, I ask whether the concept of notice failure can help us better understand U.S. copyright law and, in particular, the implications of the uncertainty created by the fair use doctrine. one initial question is whether the assumption that Bessen and Meurer make in their book can fairly be applied to copyright, i.e. whether copyright law creates a system of property rights. This is not an uncontroversial proposition, and there may well be reasons to view copyright as something quite different from both patent and real or personal property.5 I wish to put these concerns aside for now (though I will return to them later) and start with the same assumption-that copyright law creates a system of property rights-and then ask the same set of questions (albeit in a far looser and non-empirical fashion). How well does the copyright system work as a system of property rights? In particular, how well does it provide notice to third parties of the existence and scope of the property entitlements it creates? And how does the fair use doctrine figure in all of this?

As an initial matter, it is easy to see how the concept of notice failure might have some application to copyright's fair use doctrine. Fair use plays a critical role in defining the scope of copyright, as it serves as an important and significant limitation on the copyright entitlement. At the same time, it is notoriously uncertain in scope, subject to a multi-factor balancing test administered by judges in a case-by-case, fact-specific manner.6 Complaints about the uncertainty and unpredictability of the fair use doctrine are legion.7 Much scholarship has focused on how the uncertainty in the fair use doctrine chills creative expression and how various changes to the doctrine might cure this problem. This uncertainty can be understood, in Bessen and Meurer's terms, as a failure to provide third parties with adequate notice of the scope of the property entitlements created by copyright law.8

Yet upon further reflection, the concept of notice failure may not shed as much light on fair use as we might hope. Many of the characteristic types of notice failure identified by Bessen and Meurer are simply not implicated by the uncertainty in copyright's fair use doctrine. For example, lack of notice about the existence of the property right is typically not an issue in copyright cases, since copyright liability, unlike patent liability, requires actual copying and thus awareness of the underlying work.9 Similarly, questions about the validity of the property right are not typically an issue, since the requirements for validity in copyright are so low.10 It is true that ownership of the copyright can raise significant notice issues, given the lengthy term and complications surrounding transfers, renewal, termination, etc., and these important issues are the subject of other articles in this Symposium.11 The focus of this essay, however, is the fair use doctrine, and these types of notice failure do not directly implicate that doctrine.12

The fair use doctrine does potentially give rise to one form of notice failure identified by Bessen and Meurer, namely the failure to define clear boundaries of the property entitlement. …

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