Consumers & Creative Destruction: Fair Use Beyond Market Failure

37 Pages Posted: 21 Jul 2020

See all articles by Raymond Shih Ray Ku

Raymond Shih Ray Ku

Case Western Reserve University School of Law

Date Written: 2003

Abstract

For almost twenty years, the concept of market failure has defined the boundaries of fair use under copyright law. In this article Professor Ku challenges this interpretation of fair use by offering an alternative economic interpretation of the doctrine. This Article argues fair use is justified when consumer copying creatively destroys the need for copy- right's exclusive rights in reproduction and distribution. This occurs when: 1) the consumer of a work makes copies of it, and 2) creation of the work does not depend upon funding derived from the sale of copies. Under these circumstances, exclusive rights in reproduction and distribution, which are conventionally justified by the need to prevent the under- production of creative works due to free riding, are unnecessary. When both conditions are satisfied, copying does not lead to the underproduction of creative works because consumers distribute the work themselves, eliminating the need for content distributor middlemen while continuing to fund the creation of those creative works. Professor Ku argues that recognizing the process of creative destruction as fair use is not only consistent with an economic interpretation of copyright, but represents the most coherent interpretation of the consumer copying decisions handed down by the Supreme Court.

Keywords: Fair Use

Suggested Citation

Ku, Raymond Shih Ray, Consumers & Creative Destruction: Fair Use Beyond Market Failure (2003). Case Legal Studies Research Paper No. 2003, 18 Berkeley Technology Law Journal 539 (2003), Available at SSRN: https://ssrn.com/abstract=3656669

Raymond Shih Ray Ku (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
18
Abstract Views
167
PlumX Metrics