33 Cardozo Arts & Ent. L.J. 1 (2015)

handle is hein.journals/caelj33 and id is 1 raw text is: 









    TAKING USERS' RIGHTS TO THE NEXT LEVEL:
       A PRAGMATIST APPROACH TO FAIR USE*

            NIVA ELKIN-KOREN* & ORIT FISCHMAN-AFORI**

                                 Abstract

      Exceptions and limitations to the rights of copyright owners aim to
promote copyright goals in a rapidly changing world. Policymakers are
often faced with the choice of either adopting an open-norm, such as
fair use, to facilitate flexibility and adaptability, or opt for a strictly
defined list of exceptions and limitations to facilitate more certainty and
predictability. So far, this binary choice between bright-line rules and
vague standards has created a deadlock.
      This paper    argues   that in   order   to promote    a  reasoned
implementation of fair use and serve both the purpose of copyright law
and the rule of law, courts should subscribe to the doctrinal
indeterminacy mandated by fair use, while at the same time encourage
the   implementation     of  concrete    rules  within   that   standard.
Incorporating bottom-up norms, such as codes of fair use best practices,
in fair use analysis would enable courts to do just that.
      Codes of Fair Use Best Practices reflect a shared understanding
as to the scope ofpermissible uses in particular fields of practice, where
more specific norms of conduct are generated and implemented
efficiently through bottom-up processes. Drawing on lessons learned
from self-regulation, we propose a theoretical and doctrinal framework


* Permission is hereby granted for noncommercial reproduction of this Article in whole or in part
for education or research purposes, including the making of multiple copies for classroom use,
subject only to the condition that the name of the author, a complete citation, and this copyright
notice and grant of permission be included in all copies.
* Professor of Law, Faculty of Law, University of Haifa and Faculty Associate at the Berkman
Center for Internet & Society at Harvard University.
** Associate Professor, The Haim Striks School of Law, College of Management Academic
Studies.
We thank Ellen Goodman, Michael Madison, Neil Netanel, Pamela Samuelson, and the
participants of the Berkman Luncheon Series, the Faculty Colloquium at Hebrew University, the
Cegla British-Israeli Workshop on Fair Copyright Law: Limitations & Exceptions, the 2nd
Thematic Conference on Knowledge Commons: Governing Pooled Knowledge Resources, and
ATRIP Conference 2014 for invaluable discussion and great comments on earlier versions of this
Article.

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