UC Berkeley

Fair use is a mechanism to balance public interest with a copyright holder’s rights. A missing element in fair use disputes is adequate consideration of the role intermediaries, such as for-profit companies, libraries, universities, and other institutions, play in shaping how the public makes fair uses. I contend that intermediaries have been central in shaping copyright law on the books and on the ground, and that the law of fair use should be even more attentive to the intermediary-user dynamic.

Chapter One is a glimpse of the gap between law on paper and law on the ground when it comes to maintaining a balance in copyright law. This is illustrated by the enduring role that intermediaries have had a in shaping copyright law and practice in the developing world, and particularly in South Asia. I describe the role of publishers as key intermediaries in Colonial India, and the shortcomings in international instruments to fulfill the needs of developing countries. I discuss this gap as manifesting in the form of shadow libraries and the legal response to them. In Chapter Two, I draw inspiration from the insights in Chapter One to take a deeper look at the intermediary-user dynamic in fair use in the United States. Intermediaries are often found to be the facilitators of individual fair use, especially with the advent of digital technologies. The intermediary-user dynamic needs to be a central part of the fair use analysis involving intermediaries, and I propose a tiered framework that incorporates the relationship between users and intermediaries into the analysis. Fair use needs to incorporate both the end user’s benefit and the intermediary’s position in order to balance the use with the copyright holder’s interest. The proposed framework would lend stability and certainty to the various intermediary activities highlighted in the dissertation, and others like them around the world—leading to a better understanding of how fair use and other copyright exceptions may be customized for different contexts.