Copyright exceptions and innovation

Copyright has become a major feature shaping any new expression, constraining innovation at least as much as it has encouraged it. Businesses that depend on copyright monopolies have successfully lobbied for vast extensions of copyright over the last century, leveraging Romantic notions of authorship and unverified claims of piracy to block competition and increase rents. As they have, historically trivial exceptions have risen in importance to become a major bulwark against the claim that copyright is unconstitutional, in particular fair use. But most people have unclear notions of what it is, if they recognize the term at all. This article describes two decades of research on the consequences of not being able to operationalize fair use for innovation and creativity. It concludes with demonstrations of the effect on innovation and creativity when people do understand their options under the law.