Copyright Reform Act tries fixing fair use with seven words

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From Ars Technica, via RMacK:

[I]n the paragraph that comes just before the four factors, Congress did see fit to lay down a nonexclusive list of fair uses: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Is it time for more list items? The new Copyright Reform Act, proposed by Public Knowledge, would make a deceptively simple change to bring fair use into the 21st century--add seven words to this list. ...

This week, it released the first of these reform ideas (PDF) focusing on the principle of fair use. In addition to "criticism" and "news reporting" and the rest of the items in the fair use preamble, the CRA proposes the addition of three more: "incidental uses, non-consumptive uses, and personal, non-commercial uses." They might sound minor, but these suggestions are bound to provoke controversy.

What I find interesting is that this doesn't really address some of the key issues regarding the four factors, i.e. does a transformative use alone make it a fair use?

Also, I would think that "incidental uses" would already be covered under the de minimus doctrine, and I don't think that it really falls under "fair use" properly. The second factor does sound like classic fair use. The third factor is, arguably, a huge expansion of fair use.

Of course, this is highly unlikely to pass, at least in its current form, but I like it so far.

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