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As written in the Constitution, the provision granting Congress the authority to create copyright laws on its face does not include anything about fair use. In

As written in the Constitution, the provision granting Congress the authority to create copyright laws on its face does not include anything about fair use. In fact, the Constitutional text is quite explicit about creators have "exclusive" rights, and at the time, fair use was not part of the (limited) intellectual property base of law in the States or the UK. Reverting back to the original intent would likely eliminate fair use altogether.

shmerl 6y ago
Fair use should simply be a clarification of cases when copyright shouldn't apply in the first place for those who think it might apply there. To put it differently, when copyright starts being harmful to the public, fair use is a more explicit way to rein it in and keep things as they should be. In theory, if the law could be defined with 100% clarity, you wouldn't need fair use as an additional tool to prevent abuse. But things are rarely that clear.
nybble41 6y ago
> Reverting back to the original intent would likely eliminate fair use altogether. Fair use was introduced by the courts as an alternative to copyright being deemed altogether unconstitutional as a violation of the 1st Amendment right to freedom of speech. If the fair use exceptions were to be eliminated then we would be back to copyright itself being unconstitutional. Personally I think the courts were too quick to capitulate. A few narrow fair use exceptions are not sufficient to reconcile the inherent censorship of copyright with freedom of speech. > In fact, the Constitutional text is quite explicit about creators have "exclusive" rights … What the text actually says is that "The Congress shall have the Power To … promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It does not say that "creators" have exclusive rights automatically; that requires action on the part of Congress. And whatever Congress enacts in this area must comply with the rest of the Constitution, including the 1st Amendment. Even if that means that copyright effectively cannot be implemented at all.

shmerl 6y ago

Fair use should simply be a clarification of cases when copyright shouldn't apply in the first place for those who think it might apply there. To put it differently, when copyright starts being harmful to the public, fair use is a more explicit way to rein it in and keep things as they should be. In theory, if the law could be defined with 100% clarity, you wouldn't need fair use as an additional tool to prevent abuse. But things are rarely that clear.

nybble41 6y ago

> Reverting back to the original intent would likely eliminate fair use altogether. Fair use was introduced by the courts as an alternative to copyright being deemed altogether unconstitutional as a violation of the 1st Amendment right to freedom of speech. If the fair use exceptions were to be eliminated then we would be back to copyright itself being unconstitutional. Personally I think the courts were too quick to capitulate. A few narrow fair use exceptions are not sufficient to reconcile the inherent censorship of copyright with freedom of speech. > In fact, the Constitutional text is quite explicit about creators have "exclusive" rights … What the text actually says is that "The Congress shall have the Power To … promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". It does not say that "creators" have exclusive rights automatically; that requires action on the part of Congress. And whatever Congress enacts in this area must comply with the rest of the Constitution, including the 1st Amendment. Even if that means that copyright effectively cannot be implemented at all.