Fair Use as a Collective User Right

BY Haochen Sun

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 energy 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 further reduced fair use to a procedural right enjoyed by each user of copyrighted works, significantly diminishing the substantive value of fair use in protecting the public interest.

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 a mere individual right. The Article then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances their 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 set of new legal techniques to enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.

DOWNLOAD PDF | 90 N.C. L. Rev.125 (2011)