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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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Book Chapter

Publication Date



N. Elkin-Koren & N. W. Netanel




Kluwer Law International




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: 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.


Reprinted and updated in ICFAI Intellectual Property Rights Journal.

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