"Reciprocal Share-Alike Exemptions in Copyright Law"

Guy Pessach has made "Reciprocal Share-Alike Exemptions in Copyright Law" available in SSRN.

Here's an excerpt from the abstract:

This article introduces a novel element to copyright law's exemptions' scheme, and particularly the fair use doctrine-a reciprocal share-alike requirement. I argue that beneficiaries of a copyright exemption should comply with a complementary set of ex-post reciprocal share-alike obligations that come on top of the exemption that they benefit from. Among other aspects, reciprocal share-alike obligations may trump contractual limitations and technological protection measures that are imposed by parties who relied on a copyright exemption in the course of their own use of copyrighted materials. Thus, fair use beneficiaries should be obliged to treat alike subsequent third parties who wish to access and use copyrighted materials—now located in their new "hosting institution"—for additional legitimate uses.

For example, if Google argues that its Book Project's scanning of entire copyrighted works are fair use, a similar exemption should apply to the benefit of future third parties who wish to use, for similar socially valuable purposes and under similar limitations, digital copies of books from Google's databases and applications. Google should also be prohibited from imposing technological protection measures and contractual obligations that revoke its reciprocal share-alike obligations.