Recovering fair use

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This paper argues that copyright enforcement has spun out of control and the raison d’être of the law has shifted from being “an engine of free expression” (Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985)) towards a “legal regime for intellectual property that increasingly looks like the law of real property, or more properly an idealized construct of that law, one in which courts seeks out and punish virtually any use of an intellectual property right by another” (Lemley 1032). Although the copyright landscape appears bleak, two recent cases suggest that fair use has not fallen by the wayside and may well recover. This paper situates fair use as an essential legal and cultural mechanism for optimising creative expression.
Original languageEnglish
JournalM/C journal
Issue number6
Publication statusPublished - 2008

Bibliographical note

Copyright 2008 Collins, Steve; licensee QUT Creative Industries. This is an open access article distributed under the terms of the Creative Commons Attribution-Noncommercial-No Derivative Works License (, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.

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