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An Economic Model of Fair Use

  • Thomas J. Miceli

    (University of Connecticut)

  • Richard P. Adelstein

    (Wesleyan University)

The doctrine of fair use allows limited copying of creative works based on the rationale that copyright holders would consent to such uses if bargaining were possible. This paper develops a formal model 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. The analysis highlights the role of technology in shaping the efficient standard. Discussion of several key cases illustrates the applicability of the model.

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File URL: http://web2.uconn.edu/economics/working/2005-56.pdf
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Paper provided by University of Connecticut, Department of Economics in its series Working papers with number 2005-56.

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Length: 30 pages
Date of creation: Nov 2005
Date of revision:
Handle: RePEc:uct:uconnp:2005-56
Note: We wish to acknowledge the helpful comments of two referees.
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Web page: http://www.econ.uconn.edu/
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  1. Michele Boldrin & David K Levine, 2002. "The Case Against Intellectual Property," Levine's Working Paper Archive 618897000000000003, David K. Levine.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  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.
  7. 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.
  8. Lucian Arye Bebchuk, 1984. "Litigation and Settlement under Imperfect Information," RAND Journal of Economics, The RAND Corporation, vol. 15(3), pages 404-415, Autumn.
  9. 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.
  10. Klemperer, Paul, 1990. "How Broad Should the Scope of Patent Protection Be?," CEPR Discussion Papers 392, C.E.P.R. Discussion Papers.
  11. 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.
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