I have just added a page to this website devoted to the history of fair use. As I note in my article The Pre-History of Fair Use 76 Brooklyn Law Review 1371-1412 (2011), fair use does not begin with early American cases such as Folsom v. Marsh in 1841, as many accounts assume. The fair use doctrine began over a century earlier when English courts were considering issues of republishing and abridgment — the remix culture of the 1700′s.
My main points are
- Copyright has always involved some balancing between authors rights and users rights. Fair use is part of the legal tradition of every country that traces its copyright law back to the Statute of Anne.
- Fair use did not take away from authors rights, it made it possible for the courts to take a purposive reading of the copyright act that actually expanded authors rights.