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An Economic Model of Fair Use

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Author Info
Thomas J. Miceli (University of Connecticut)
Richard P. Adelstein (Wesleyan University)

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Abstract

The doctrine of fair use allows unauthorized copying of original works of art, music, and literature for limited purposes like criticism, research, and education, based on the rationale that copyright holders would consent to such uses if bargaining were possible. This paper develops the first formal analysis of fair use in an effort to derive the efficient legal standard for applying the doctrine. The model interprets copies and originals as differentiated products and defines fair use as a threshold separating permissible copying from infringement. Application of the analysis to several key cases (including the recent Napster case) shows that this interpretation is consistent with actual legal reasoning. The analysis also underscores the role of technology in shaping the efficient scope of fair use.

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File URL: http://www.econ.uconn.edu/working/2003-38.pdf
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Publisher Info
Paper provided by University of Connecticut, Department of Economics in its series Working papers with number 2003-38.

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Length: 23 pages
Date of creation: Sep 2003
Date of revision:
Handle: RePEc:uct:uconnp:2003-38

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Please report citation or reference errors to , or , if you are the registered author of the cited work, log in to your RePEc Author Service profile, click on "citations" and make appropriate adjustments.:
  1. Landes, William M & Posner, Richard A, 1989. "An Economic Analysis of Copyright Law," Journal of Legal Studies, University of Chicago Press, vol. 18(2), pages 325-63, June.
  2. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn. [Downloadable!] (restricted)
  3. Depoorter, Ben & Parisi, Francesco, 2002. "Fair use and copyright protection: a price theory explanation," International Review of Law and Economics, Elsevier, vol. 21(4), pages 453-473, May. [Downloadable!] (restricted)
  4. Michele Boldrin & David K Levine, 2002. "The Case Against Intellectual Property," Levine's Working Paper Archive 618897000000000003, David K. Levine. [Downloadable!]
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  5. Liebowitz, S J, 1985. "Copying and Indirect Appropriability: Photocopying of Journals," Journal of Political Economy, University of Chicago Press, vol. 93(5), pages 945-57, October. [Downloadable!] (restricted)
  6. Adelstein, Richard P. & Peretz, Steven I., 1985. "The competition of technologies in markets for ideas: Copyright and fair use in evolutionary perspective," International Review of Law and Economics, Elsevier, vol. 5(2), pages 209-238, December. [Downloadable!] (restricted)
  7. Posner, Richard A, 1992. "When Is Parody Fair Use?," Journal of Legal Studies, University of Chicago Press, vol. 21(1), pages 67-78, January.
  8. Benjamin Klein & Andres V. Lerner & Kevin M. Murphy, 2002. "The Economics of Copyright "Fair Use" in a Networked World," American Economic Review, American Economic Association, vol. 92(2), pages 205-208, May. [Downloadable!]
  9. Cooter, Robert D & Rubinfeld, Daniel L, 1989. "Economic Analysis of Legal Disputes and Their Resolution," Journal of Economic Literature, American Economic Association, vol. 27(3), pages 1067-97, September. [Downloadable!] (restricted)
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  1. Matthew J. Baker & Brendan M. Cunningham, 2004. "Court Decisions and Equity Markets: Estimating the Value of Copyright Protection," Departmental Working Papers 4, United States Naval Academy Department of Economics. [Downloadable!]
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