Setting the record straight on fair use in the U.S.

The Fair Use Doctrine in the United States — A Response to the Kernochan Report, by Gwen Hinze, Peter Jaszi &  Matthew Sag, July 26, 2013.

Our submission provides a brief overview of the U.S. experience of the fair use doctrine since its partial codification in the Copyright Act of 1976 and responds to some specific issues raised in an earlier submission to the Australian Law Reform Commission by the Kernochan Center for Law, Media and the Arts. Gwen, Peter and I were concerned that the Kernochan Report’s representation of American experience of fair use was incomplete and potentially misleading. We wrote this submission to provide the ALRC with a different perspective.

Our submission addresses nine questions about the fair use doctrine in the United States

  1. Does the american experience of fair use show that it is unpredictable?
  2. Do recent cases demonstrate that fair use is uncertain in application?
  3. What is the role of fair use guidelines in the United States?
  4. What is the role of various “best practices” guidelines in the United States?
  5. What does fair use mean to the education sector in the United States?
  6. Would australian fair use rulings diverge from United States’ precedent over time?
  7. Would adopting a fair use doctrine lead to more litigation? Would fair use be useful without substantial litigation?
  8. How does educational fair use relate to the anti-circumvention provisions under United States law?
  9. Is the fair use doctrine compatible with the international obligations of the United States?

Available for download here.