Administering Fair Use

Fair use is not working. As written by Congress and applied by the courts, the fair use law fails to give individuals sufficiently clear guidance to determine in advance whether their uses of copyrighted works are fair and therefore noninfringing. When the law does not regulate adequately, markets can supply the rules. Thus, copyright owners and prospective users of copyrighted works can - and do - negotiate over and enter into contracts specifying permissible uses. However, leaving fair use to the market is far from desirable. Fair use is not meant to be something that is sold and bought like other market goods. Fair use is free use. Nobody is meant to be paying for the privilege of using a copyrighted work in a manner that the law deems not to infringe the copyright in the work. Moreover, the fair use market is not a fair market. The failure of Congress and of the courts to provide clear guidance on the meaning of fair use permits copyright owners to leverage the vagueness of the law and persuade prospective users that virtually any unauthorized use constitutes copyright infringement - and that if the use is not paid for it will result in a lawsuit and substantial damages. This Article offers a new approach to fair use. It proposes a role for the one branch of the federal government that has so far been left out of the picture: the executive branch. In most areas of the law where clear legal directives are needed to guide behavior in particular contexts and where Congress and the courts are unable to supply the clarity, we turn to administrative agencies. An administrative agency can, and should, regulate fair use. Accordingly, the Article offers two possible models of agency regulation. In the first model, an agency is responsible for generating regulations that determine what constitutes fair use in specific contexts as well as preventing efforts to interfere with fair uses of copyrighted works. In the second model, an agency issues fair use regulations and determines prior to any copyright infringement claim being brought in court whether the use in question constitutes fair use. Agency regulation can bring much needed clarity and predictability to fair use in ways that neither Congress nor the courts are able to accomplish; an agency can also protect fair use in ways that the market does not.