Document Type
Book Chapter
Publication Date
2002
Editor(s)
N. Elkin-Koren & N. W. Netanel
ISSN
08863520
Publisher
Kluwer Law International
Language
en-US
Abstract
Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.
I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As for clarification, I want to emphasize that markets do not "fail" solely when transaction costs are so high that a potential seller and buyer fail to meet. As for amendment, I want to amend my treatment of how substantial injury affects fair use.
Recommended Citation
Wendy J. Gordon,
Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives
,
in
50
The Commodification of Information
149
(N. Elkin-Koren & N. W. Netanel ed.,
2002).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/1927
Comments
Reprinted and updated in ICFAI Intellectual Property Rights Journal.