Digital Fair Prosumption and the fair use defence

The key element of Web 2.0 is what O'Reilly refers to as an 'architecture of participation'. Taglines such as YouTube's 'broadcast yourself' and Lulu's 'publish your words, your art - for fun or profit' point to the creative empowerment that has accompanied the mass adoption of digital technologies and the rise of Web 2.0 applications. Combined with the 'rip, mix and burn' nature of digital technologies, the Web has rapidly become a locus for user-created content, much of which copies, appropriates and mashes up copyrighted materials. The invitation to engage with the media-saturated environment has led to a proliferation of prosumerism through which many consumers have become producers of content. Appropriation and redeployment of copyrighted materials in the prosumption arena has drawn creators and right holders into conflict. Copyright owners seek to maintain control over information flows, whilst prosumers make (what they consider to be) fair uses of elements harvested from the media-saturated environment. This article is concerned with these tensions that - whilst not new - have been exacerbated by Web 2.0. Specifically, this article addresses the issue of fairness (in the context of the US fair use doctrine) in the digital age and questions whether powerful cultural forces require a reconfiguration of copyright law. Fairness is an elusive concept; in the realm of copyright, an act may simultaneously be decried as piracy and defended as a fair use. Web 2.0 has fostered a growing prosumer culture that freely appropriates from media sources to give effect to new works, and this article questions whether the customary practices of this emergent culture should impact upon the legal construction of fairness.