Document Type

Article

Publication Date

2001

Abstract

In this paper, we consider whether rights management systems can be supported by legal and institutional infrastructures that enable appropriate public access to the works secured by these technologies. We focus primarily on the design challenges posed by the fair use doctrine, which historically has played a central role in preserving such access. Throughout the paper, however, we also use the term "fair use" to refer more generally to the variety of limiting doctrines within copyright law that serve this goal. We begin in Part II by reviewing the contours of the fair use doctrine and the legal and policy requirements that mandate appropriate public access to copyrighted works and other publicly available informational works. Part Ill discusses the nature and purpose of rights management systems, their legal status under the current anti-circumvention provisions of U.S. law, and their likely effects on fair use. In Part IV, we consider the foreseeable technical and institutional options that might enable proper public access to secured works and offer a proposal combining minimum system flexibility requirements in exchange for copyright enforcement and "key escrow" in exchange for anti-circumvention protection. Part V assesses the legal feasibility of such a system and concludes that the proposal comports with the United States' obligations under international copyright agreements. Finally, Part VI considers whether implementation of the proposal would represent good policy and concludes that it may be the best realistic alternative for preserving fair use in the digital age.

Publication Citation

15 Harv. J.L. & Tech. 41-83 (2001)