Fair Use, Notice Failure, and the Limits of Copyright as Property

If we start with the assumption that copyright law creates a system of property rights, to what extent does this system give adequate notice to third parties regarding the scope of such rights, particularly given the prominent role played by the fair use doctrine? This essay argues that, although the fair use doctrine may provide adequate notice to sophisticated third parties, it fails to provide adequate notice to less sophisticated parties. Specifically, the fair use doctrine imposes nearly insuperable informational burdens upon the general public regarding the scope of the property entitlement and the corresponding duty to avoid infringement. Moreover, these burdens have only increased with changes in technology that enable more, and more varied, uses of copyrighted works. The traditional response to uncertainty in fair use has been to suggest ways of curing the notice failure by providing clearer rules about what is and is not permitted. This essay suggests, however, that these efforts to reinforce the property framework feel increasingly strained and fail to reflect how copyright law is actually experienced by the general public. Indeed, the extent of the notice failure is such that it may be time to stop treating copyright like a property right, at least for certain classes of users. The essay ends by suggesting a number of alternative frameworks that would seek to regulate public behavior regarding copyrighted works without imposing the unrealistic informational burdens required by a system of property rights