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An economic model of fair use

  • Miceli, Thomas J.
  • Adelstein, Richard P.

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.sciencedirect.com/science/article/B6V8J-4JSFV7V-1/2/26463c7f8036fc0f7dd840056ca29473
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Article provided by Elsevier in its journal Information Economics and Policy.

Volume (Year): 18 (2006)
Issue (Month): 4 (November)
Pages: 359-373

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Handle: RePEc:eee:iepoli:v:18:y:2006:i:4:p:359-373
Contact details of provider: Web page: http://www.elsevier.com/locate/inca/505549

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  1. Boldrin, Michele & Levine, David, 2002. "The Case Against Intellectual Property," CEPR Discussion Papers 3273, C.E.P.R. Discussion Papers.
  2. Posner, Richard A, 1992. "When Is Parody Fair Use?," The Journal of Legal Studies, University of Chicago Press, vol. 21(1), pages 67-78, January.
  3. Paul Klemperer, 1990. "How Broad Should the Scope of Patent Protection Be?," RAND Journal of Economics, The RAND Corporation, vol. 21(1), pages 113-130, Spring.
  4. 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.
  5. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn.
  6. Novos, Ian E & Waldman, Michael, 1984. "The Effects of Increased Copyright Protection: An Analytic Approach," Journal of Political Economy, University of Chicago Press, vol. 92(2), pages 236-46, April.
  7. 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.
  8. Landes, William M & Posner, Richard A, 1989. "An Economic Analysis of Copyright Law," The Journal of Legal Studies, University of Chicago Press, vol. 18(2), pages 325-63, June.
  9. 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.
  10. 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.
  11. 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.
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