Wu, TimothyTolerated Use 2007-2008
Columbia Journal of Law and the Arts 617

Summary:

Summary: Traditionally, © comprehended 5 main categories of use: (1) infringing; (2) non-infringing (e.g. non substantial); (3) privately licensed; (4) publicly licensed; and (5) fair use [p618].

In the last 20 years, some new categories of usage have developed: (1) implicitly licensed; (2) tolerated use. Difference is that for an implicit licence, you can point to writing or conduct that creates permission (e.g. newspaper providing means for readers to email articles), but for tolerated use there is no such conduct [p619].

How have we dealt with tolerated use? - Creation of “opt-in” copyright enforcement systems that require the owner to provide notice before the use becomes infringing (an “ex post notice property system”) [p620].

Examples:

  • safe harbours for ISP/search engines/hosts – not liable until sent explicit notice of infringing use and until entity fails to take down content (“notice and takedown”) [p621]
  • orphan works [p622]
  • Google Books litigation [p622]
  • Informal practice of non-enforcement – leads to a system where non-commercial users use the work and only stop if send cease and desist letter [p622]

“Ex post regimes may be most useful in high volume, low value situations” [p628].

“Copyright seems to be evolving towards an opt-in rights system for dealing with the giant gray zone of tolerated use” [p630] (However, note the objections relating to scalability and transactions costs on p629).

Alternatives? -

  • Better treatment for complements (e.g. fan sites which make the original work more valuable, not subtract from it (even though it may involve unlicensed reproductions or adaptations) [pp630-633]
  • Copyright No Action Policy – copyright owner posts notice on website outlining uses of the work which the copyright owner will not enforce – similar to CC licence, but more specific, tailored and changeable [pp633-634]

(Note also explanation of differences between property and liability rules at pp 623-624).

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