Gold on Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions

Sara Gold, Eastman IP, has published Copyright Fair Use from 1841 to 2021: What It Means For Copyright Protections Versus Free Speech Exceptions in The Federal Lawyer, May/June 2021. Here is the abstract.

This article, published in the May/June 2021 edition of The Federal Lawyer, examines the jurisprudential and legislative history of copyright fair use in relation to its current status in American copyright law as an "affirmative defense." Fair use as an affirmative defense is relatively ingrained into modern U.S. copyright law, even though the Copyright Act does not use this label. Because fair use is treated as an affirmative defense, defendants wholly bear the burdens of production and persuasion on all four fair-use factors articulated in Section 107 of the Copyright Act. However, this full allocation to the defendant may reflect an imbalance between the rights of copyright holders and the rights of the public. These considerations are especially evident when it comes to summary judgment, which already places the onus on the defendant to eliminate issues of fact, and when it comes to the market harm factor, which requires the defendant to prove the absence of harm to markets that not it, but the plaintiff, owns. The Copyright Act's lack of specificity as to the procedural posture of fair use could support a currently untapped judicial flexibility when it comes to approaching fair use from this standpoint. As this article concludes, a procedural approach that takes into account the parties' relative access to evidence and information could bring copyright protection and copyright exception into better balance, furthering the goal of copyright law to foster creativity.

Download the article from SSRN at the link.