The Fair Use Conundrum
Fair use is not a business model. It is a limited affirmative defense to a charge of copyright infringement. As such, publishers seek to avoid having to rely on fair use. The result is that fair use in practice exists far within the bounds of the law of fair use. It is much cheaper to obtain a license than to go to trial to defend a copyright infringement lawsuit.
As a result of this calculus, there are … a paucity of fair use decisions (especially appellate decisions). Because the actual structure of fair use is entirely a judge-made common law, the fewer decisions available, the less case law support exists for advocating particular interpretations of fair use.
This creates a feedback loop, where the legal departments of publishers are exceptionally cautious about matters of fair use– with good reason– and will require creators to obtain licenses before publishing any work that incorporates quotes or snippets of other works.
IPTABlog. [Comedies of Fair Use] Thoughts on Fair Use. May 4, 2006.
CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.