The Communications and Computer Industry Association has released a report that attempts to ascertain the value of fair use to the U.S. economy. The 2017 report places the value added to the economy at $2.8 trillion dollars in 2014 with 18 million workers “benefiting from fair use.” The 2017 report also states that $5.6 trillion dollars of revenue was generated by fair use industries. Some examples of fair use industries include: “manufacturers of consumer devices that allow individual copying and recording; educational institutions; software developers; and Internet search and web hosting providers.” In discussing fair use, the report states:
One of the beneﬁts of the ﬂexible fair use doctrine is its adaptability, which can cover unanticipated new uses and technologies. Whereas narrow exceptions drafted around speciﬁc technologies become outdated rapidly, the ﬂexibility of the fair use doctrine has, at different times, enabled both consumer electronics and online services. The breathing space provided by fair use has facilitated a thriving technology industry in the United States. New online products and services almost inevitably involve some transitory copying, if only for technological purposes. This makes the fair use doctrine a necessity, as licensing every time an image is copied into a computer’s memory, for example, would be prohibitively expensive and time-consuming.
Fair use has proven to be critical to other industries as well. For example, the varied industries that encompass the entertainment industry all rely on fair use. Fair use is also crucial in the context of education and reporting the news, which depend upon reproducing and disseminating primary sources. This reliance often becomes most apparent in litigation, as all of these industries have defended ordinary business conduct before courts by relying on the fair use doctrine.
In addition to being critical to a vast number of U.S. constituencies, fair use has also gained recognition abroad as a crucial information technology policy. While fair use is a principle of uniquely American origin, nearly 50 other countries have adopted some version of American fair use or its British counterpart, fair dealing, into their domestic copyright law.1 Perceiving the success that has resulted from the balances in the U.S. copyright system, many countries aspire to emulate the U.S. fair use model. This is the case even in countries with well-developed copyright systems. For example, in 2010, then-Prime Minister David Cameron announced an inquiry into adopting a fair use-type provision in UK law, in order to “encourage the sort of creative innovation that exists in America.”
It would be interesting to see if a similar analysis could be done for experimental use type exceptions to patent infringement in Europe.
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