Reprivileging the Fair Use Defense For Scholars

  
Scholarship has long enjoyed a privileged status in the world of ideas and information. Scholarship made it possible to assemble the past, present, and future in coherent form. With the development of printing it became the chief engine by which understanding and knowledge were disseminated in an increasingly literate world. From the very beginning of what we now call copyright, and from the very first claims of right that attached to authors and publications, scholarship was driven in law by a felt need to encourage its dissemination and by a sense that its product was common property, its production a common good, and its availability a common necessity.

Knowledge and understanding are accumulative and open-ended, building on or departing from what has been said before. Their claims to ownership and control are weak. Their claim to make use of that which has come before is strong. From its very beginnings the idea of copyright has reflected these principles, sometimes permitting outright copying (what we would today call plagiarism) in the interest of broadened distribution of knowledge and understanding. The distinct and privileged status of scholarship has persisted throughout copyright’s history, even to the present. Yet in the present, with which we are ultimately concerned, the privileged status of scholarship is more vestigial than real, increasingly suffocated in the breadth of copyright’s reach and the grasp of its complex rules, especially those at the center of its privilege: fair use.

Our purpose is to recapture the heart of scholarship’s privileged status in the fair use setting. We do so by drawing on history, the common law, legislation, policy, and practical consequences over the course of copyright’s long history. We look to the twin ideas of infringement and fair use in concluding that scholarship must enjoy special recognition and privileged status in copyright. Our conclusion is that scholarly use of prior work should be privileged, either absolutely or by a heavy presumption that the use is fair and thus free from liability.

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