Introduction: Futures of Fair Use

Abstract

This Introduction previews significant questions posed by the various essays contained in the special “Futures of fair Use” issue of Law and Literature. Does the fair use doctrine in U.S. copyright law have a future? For many legal scholars, copyleft activists, and cultural producers the answer is an emphatic No. Because Section 107 of the U.S. Copyright Act frames fair use according to four loosely-worded and unweighted “factors,” the practical dimensions of fair use must be determined on a case-by-case basis — often, in contentious instances, by way of expensive infringement suits. Users who lack the resources for such suits confront a “copyright clearance” culture that puts all discretion in the hands of the rights holder, giving even the most frivolous takedown notices and cease-and-desist letters an aura of final authority. Meanwhile, content owners are looking to neighboring regimes — contract, privacy, and trade secret law, among others — to fill whatever gaps fair use leaves in the edifice of intellectual property. Internationally, the absence or near-absence of a fair use doctrine in countries with a moral rights tradition has complicated international harmonization and has led to efforts by major international organizations to ignore or eliminate fair use. And one could argue that the most practical innovation from the copyleft — the Creative Commons flexible license — represents a retreat from fair use by those best equipped to defend it: where the user-oriented fair use doctrine mitigates copyright regardless of the creator’s preference, Creative Commons lets a work’s creator micro-manage the terms of its reception and reuse.

The “Futures of Fair Use” special issue of Law & Literature aims to capture the energy of these debates and to consider what initiatives might come next in policy, scholarship, and practice. The word futures in the title does several kinds of work. It marks the fact that the statutory, precedential, and practical futures of fair use are volatile and still evolving, as are the methodologies and disciplines that will shape our study of fair use in the coming years. But just as importantly, it indexes a sense that futurity, or the question of what the future is to be, is always entailed in fair use — that fair use is one of the apertures through which the futures of fresh creation, expressive latitude, and individual and cultural property can enter and be foreglimpsed. In debating the future of fair use, that is, we are always debating which of many possible futures, and conditions of subsequent future-making, will be summoned into being by our statutes and practices. The optic of futurity opens fair use to broader questions than are typically asked of it — questions about the relationship between myths and norms, personhood and property, law and haunting, sovereignty and citizenry. Finally, the term futures also marks our resistance to the “recency bias” that afflicts much law and humanities scholarship. We are interested not only in the futures of fair use as seen from the vantage of the present but also in the futures past of the doctrine: its past senses of what it augured; whether these were futures that came to pass or were superseded; and whether superseded futures might, as in the case of the Fair Use Best Practices movement, be reawakened in the present.

Keywords: Copyright