Fair Use as
Innovation Policy
Fred Von
Lohmann
affiliation not provided to SSRN
Berkley Technology Law Journal, Vol. 23, No. 2, 2008
Abstract:
American consumers increasingly take iPods, TiVos and similar private
copying technologies for granted. Yet copyright law lacks a coherent
account for this private, nontransformative copying. This article
contends that copyright law's historical tolerance for such copying as
a fair use
has served as an important element of both copyright and innovation policy. This is because, to the
extent it permits private copying, fair
use
creates incentives for technology companies to build innovative new
products that enable such copying. Far from being an unfair "subsidy"
from copyright owners to technology innovators, this aspect of fair use has yielded complementary technologies
that enhance the value of copyrighted works. This fair use
incentive to technology companies, moreover, is justified in light of a
persistent market failure that would otherwise result in
underproduction of certain kinds of socially-beneficial innovations.
Finally, there are reasons to believe that technology innovators may
not in many cases be able to appropriate to themselves the value of the
fair uses that their technologies enable, because those uses will not
be part of their marginal costs of production. To the extent that the
value of these fair uses ends up being captured by the public, rather
than technology innovators, this also furthers the purposes of
copyright law.
Keywords:
copyright, fair use, innovation,
private copying, market failure
Accepted Paper Series