| dc.description.abstract | There is no such thing as the copyright law of fanworks, and this is a thesis about it. Fanworks gained legal relevance in the internet era, when the ability to police such content first developed. Their legal status is such, three decades of study notwithstanding, that ex ante certainty as to whether a particular fanwork will infringe copyright remains the exception. This thesis re-examines the academic consensus that fanworks are a socially beneficial activity that should be permitted, but resides in a legal grey area, in an effort to determine why attempted solutions have been unavailing and find new routes forward. The thesis assesses what fanworks are and how they are used, concluding that their scope exceeds that depicted in most literature. This is followed by a black-letter analysis primarily rooted in American law, aided by insights from the law of England and other common law jurisdictions, to re-assess the extent of the problem. The black-letter analysis, which reveals multiple areas of unresolved uncertainty, is followed by an examination of the effects of uncertainty individual users and society, and reveals a wide range of significant detrimental effects. Prior proposed solutions, however, are unlikely to work, in large part because copyright law was not designed to address user rights. This strongly suggests a need for a positive law approach to user rights. Although copyright policy pays lip service to the need to balance rightholder interests against the public’s interest, the public interest is not spelled out. This routinely tips the balance to the rightsholders, who benefit from defined rights. Levelling the playing field will provide required clarity while ensuring that the public retains the right to engage in the kind of activities that have always been part of the usage of protected works. | en_US |
