Instead of ginning up exceptions to a general prohibition on copying just to permit publicly valuable use of content, maybe we should just admit that “copying” no longer makes sense as a primary locus of intellectual property regulation. Fair use analysis typically employs a four factor test, but the upshot is usually to see how a particular type of copying would affect the market for the original workwhich makes sense, given that the purpose of copyright is to give creators a financial incentive to produce and distribute new works.
If that’s fundamentally what we care about, though, a default property-like right of control over copying, which now has to be riddled with exceptions to allow almost any ordinary use of content, looks like an increasingly circuitous Rube Goldberg mechanism for achieving that goal. I’m not sure what the alternative would beor even whether rejiggering the basic categories would alter the the underlying analysis much. Butjust off the top of my headyou could imagine a system where the core offense was not “copyright infringement” but some kind of tort of unfair competition with an original work.
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