Should a Licensing Market Require Licensing?

Abstract

From Introduction:

"...A significant substantive development in the last two decades has shrunk fair use as well: the willingness of the courts to find a use unfair, even though it did not cost the copyright owner a sale, because the copyright owner could have gotten a licensing payment from the accused infringer. The result has been that even highly transformative uses that do not substitute for sales by the copyright owner are found unfair, and control over those uses defaults to the copyright owner.

"The goal of this paper is not to challenge this restrictive view of fair use. Others have done that. Rather, it is to suggest that in many circumstances fair use should separate the idea that the copyright owner should be compensated for a use from the idea that the copyright owner should be able to control that use. The licensing-market cases provide a perfect vehicle for dividing those rights. If the only reason a use is considered unfair is because the copyright owner could have gotten paid to permit that use, that argument may -- or may not -- justify compensating the copyright owner for that 'loss,' but it does not justify giving the copyright owner control over the defendant's use."