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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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