Copycense kicked off an interesting thought exercise, in questioning if, instead of trying to carefully define what qualifies as “fair use,” we might be better off trying to define what constitutes “unfair use.” Of course, some copyright system supporters might note that copyright itself defines what unfair use is — and it’s pretty much any unauthorized reproduction, distribution, performance etc. of a covered work. In that world, “fair use” are the narrow exceptions.
But there’s a strong argument to be made that that’s wrong. The purpose of copyright — as we remind folks every so often — was set about to “promote the progress” with the main focus being on better encouraging education through knowledge transfer. So, perhaps the case can be made that rather than focusing on narrow exceptions to copyright law, we should go back to realizing that copyright is the exception and the public domain is the rule. From there, the thinking is exactly right. If the goal of copyright is to promote the progress of science and the useful arts, then let’s focus on what should be considered “unfair” and build from there, rather than starting with a wall that says “everything is unfair” and here are a tiny few exceptions.
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