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Fair use explained – or not?

Mark Sableman July 11, 2013

Fair use in copyright law is one of the more challenging and unpredictable legal tests around. Even those of us who frequently deal with it find it difficult to provide hard-and-fast guidance. As I wrote a few years ago, it’s simply not possible to honestly give simple, clear, advance fair use guidelines for the multitude of situations that come up. To put it even more bluntly, as Judge Richard Posner did at a recent Chicago Bar Association seminar, the statutory definition is “totally useless.”

Against that background, what do we make of the interesting tidbit in the Obama Administration’s annual report on protecting U.S. intellectual property rights in the digital age, the “2013 Joint Strategic Plan on Intellectual Property Enforcement”? The administration, recognizing that IP enforcement “should not discourage authors from building appropriately upon the works of others,” plans to “educate authors on fair use.” How exactly? Why, by “publish[ing] and maintain[ing] an index of major fair use decisions, including a summary of the holdings and some general questions and observations that may in turn guide those seeking to apply the decisions to their own situations.”

Nice idea, I guess. But I am really not sure that journalists, researchers, writers, artists, and others who want to exercise their fair use rights are really going to be delighted just to have an index and a summary of scores of court decisions that even we copyright lawyers sometimes find difficult to reconcile.

In fairness, Victoria Espinel, the nation’s IP Czar, faces the difficult job of fighting infringement in a world full of infringers and counterfeiters (see the other 91½ pages of the report), so her office may not view spelling out fair use rights as a top priority.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at  (314) 552-6103 or msableman@thompsoncoburn.com.