by Jessica Litman — published in 2008

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University of Michigan Law School

Public Law and Legal Theory Working Paper

In this paper, written for a symposium on Fair Use: Incredibly Expanding or Extraordinarily Shrinking?, I argue that the size of the fair use footprint has remained about the same over the past three decades, while the size and scope of copyright's
exclusive rights have expanded markedly. In order to protect a broader range of worthy uses under the fair use umbrella, courts have adopted new tests tailored to privilege particular sorts of uses, but in doing so they haven't expanded fair use so much as they
have moved it around. In part I of the paper, I briefly summarize the recent history of fair use from the Copyright Office's initial recommendations that Congress codify it through the tests the courts have articulated for applying it. I then turn to the expansion in
exclusive rights under section 106.

Academic sector, Political/Regulatory/Legal, copyright, IPR, fair use, access to information