000041908 000__ 03049cam\a22002535i\4500 000041908 001__ 41908 000041908 003__ SzGeWIPO 000041908 005__ 20240708145851.0 000041908 008__ 200619s2015\\\\sz\\\\\\r\\\\\000\0\eng\d 000041908 022__ $$a0736-7694 000041908 040__ $$aSzGeWIPO$$beng$$erda 000041908 041__ $$aeng 000041908 1001_ $$aElkin-Koren, Niva 000041908 1001_ $$aFischman-Afori, Orit 000041908 24503 $$aTaking Users’ Rights to the Next Level :$$bA Pragmatist Approach to Fair Use 000041908 264_1 $$a[New York City, New York] :$$bYeshiva University Benjamin N. Cardozo School of Law,$$c2015. 000041908 300__ $$a45 pages 000041908 336__ $$atext$$btxt$$2rdacontent 000041908 337__ $$aunmediated$$bn$$2rdamedia 000041908 338__ $$avolume$$bnc$$2rdacarrier 000041908 520__ $$aExceptions and limitations to the rights of copyright owners aim to promote copyright goals in a rapidly changing world.Policymakers are often faced with the choice of either adopting an open-norm, such as fair use, to facilitate flexibility and adaptability, or opt for a strictly defined list of exceptions and limitations to facilitate more certainty and predictability. So far, this binary choice between bright-line rules and vague standards has created a deadlock.This paper argues that in order to promote a reasoned implementation of fair use and serve both the purpose of copyright law and the rule of law, courts should subscribe to the doctrinal indeterminacy mandated by fair use, while at the same time encourage the implementation of concrete rules within that standard. Incorporating bottom-up norms, such as codes of fair use best practices, in fair use analysis would enable courts to do just that. Codes of Fair Use Best Practices reflect a shared understanding as to the scope of permissible uses in particular fields of practice, where more specific norms of conduct are generated and implemented efficiently through bottom-up processes. Drawing on lessons learned from self-regulation, we propose a theoretical and doctrinal framework for implementing Fair Use Best Practices in legal analysis. We argue that norm building is a dynamic multi-faceted process, and that incorporating bottom-up norms in fair use analysis, would enhance the efficacy and legitimacy of copyright law.We further identify several legal implications of Fair Use Best Practices: to inform the legal interpretation of fair use or prepare the ground for legislation; and to provide the court with a benchmark when determining liability for copyright infringement. Here we introduce a pragmatist approach to fair use. This novel approach to fair use shifts the focal point of legal analysis from a fact-intensive inquiry, which seeks to determine whether the use was fair or not, to reasonable compliance, using Fair Use Best Practices as a benchmark. At the doctrinal level, we show how the Pragmatist Approach to fair use could be implemented under the current law, by limiting liability for copyright infringement under doctrines such as “innocent infringer” or “reasonable conduct.” 000041908 525__ $$aPublished in : Cardozo Arts & Entertainment Law, vol. 33, no. 1 (2015) 000041908 650_0 $$aCopyright 000041908 650_0 $$aFair use 000041908 650_0 $$aLaw 000041908 650_0 $$aFair Use Best Practices 000041908 85641 $$uhttp://www.cardozoaelj.com/wp-content/uploads/2014/01/Elkin-Koren-Fischman-Afori-Final.pdf$$yView this resource 000041908 904__ $$aJournal article 000041908 980__ $$aBIB