Treating Fair Use as an Easement on Intellectual Property

Copyright holders have run with the copyright-as-property analogy to strengthen their rights, to the detriment of the public. There are few barriers to copyright holders locking all content behind paywalls regardless of the mixed public domain nature of the content or the fair use intentions of the public. If fair use is treated as an easement, fair use applies even if a law doesn’t explicitly invoke it, the public’s fair use rights cannot be eliminated, and copyright holders may be enjoined if they completely block fair use rights. In his 2016 article “Copyright Easement,” Jason Mazzone argues copyright easements are a way authors can reserve rights when assigning their works to publishers, but Mazzone does not equate fair use with an easement. Others have hinted at the possibility of fair use as an easement, but none has developed it. Making fair use an easement rebalances the property analogy to strengthen the public’s interest in copyrighted works and provides a theoretical and case-law foundation to push back against copyright holders’ intellectual land grab. This Note is the first paper to fully advocate treating fair use as an easement on copyright