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Will Fair Use Survive?

  • Tricia Beckles
  • Marjorie Heins
Published: January 4, 2005

Fair use is a crucial part of our copyright system. It allows any of us to quote and reproduce parts – or sometimes all – of copyrighted works, if the use advances creativity and democratic discussion. There are similar free expression safeguards in trademark law. Together, they assure that the owners of “intellectual property” cannot close down the free exchange of ideas. These safeguards in our copyright and trademark systems are at risk today. Threatening “cease and desist” letters cause many people to give up their fair use rights.

Even more troublesome are “take-down” notices sent by copyright owners to Internet service providers, which pressure them to remove online speech without any court having ruled that it is illegal. Additional hurdles to fair use come from the “clearance culture” in many creative industries, which assumes that almost no quote can be used without permission from the owner. Meanwhile, educational “fair use guidelines,” which are often narrower than fair use law, prevent many teachers from copying material for their classes.