Fair Use Week 2016: Day Five With Guest Expert Matthew Rimmer




Malcolm Turnbull, Copyright Law Reform, And The Innovation Agenda

by Matthew Rimmer


Australian Prime Minister the Hon. Malcolm Turnbull

2015 has been another tumultuous year in Australian Politics. There was a dramatic change in the leadership of the ruling conservative coalition between the Liberal Party of Australia and the National Party of Australia. Tony Abbott was replaced as Prime Minister of Australia by Malcolm Turnbull. This change of leadership has been consequential for Australian copyright politics. The transition from Tony Abbott to Malcolm Turnbull has resulted in a re-positioning of the Federal Government’s approach to copyright law and innovation policy.

Under the aggressive leadership of Tony Abbott, the Federal Government took a hard line on copyright enforcement. The film studio Village Roadshow made significant political donations to both the Liberal Party of Australia and the opposition, the Australian Labor Party. The Attorney-General George Brandis pushed through the passage of the Copyright Amendment (Online Infringement) Act 2015 (Cth), with the rather docile assistance of the Shadow Attorney-General Mark Dreyfus. The Internet site-blocking legislation was dubbed the worst piece of legislation by the Electronic Frontier Foundation in 2015. Village Roadshow has already launched a copyright action over the Solar Movie regime in the Federal Court of Australia to test the new regime. Moreover, the Attorney-General George Brandis pushed for a copyright code, governing the relationship between copyright owners, intermediaries, and Internet users. He scorned the recommendations of the Australian Law Reform Commission to introduce into Australia law a broad, open-ended defence of fair use like the United States. Furthermore, the Abbott Government was an enthusiastic cheerleader for the passage of the Trans-Pacific Partnership, with its arsenal of intellectual property enforcement measures.

In contrast to Tony Abbott, who was hostile to science and technology, Australia’s New urbane Prime Minister Malcolm Turnbull has promoted an innovation agenda, and placed emphasis upon entrepreneurship, economic agility, and digital disruption. He has had significant exposure to intellectual property law and policy, as is well documented by Paddy Manning’s new biography, Born to Rule. Turnbull made his name in the ‘Spycatcher’ case, taking on and defeating the United Kingdom Government. As chairman of OzEmail, he was no doubt sensitized to copyright issues. The copyright collecting society APRA threatened an action for copyright infringement against the internet service provider, which was later settled. Turnbull took carriage of reforms of film copyright during the Howard Government. He seemed uncomfortable with a number of policies of the Abbott Government affecting the Internet. Peter Hartcher reported that Malcolm Turnbull battled with Tony Abbott over the proposal for copyright fines for Australian internet users. Turnbull was of the view that Abbott’s heavy-handed copyright proposals were ‘politically explosive.’ Interestingly, Turnbull has also been an outspoken critic of gene patents – a stance that has been reinforced by the recent High Court of Australia ruling against Myriad Genetics Inc.

Malcolm Turnbull has shifted the responsibility for copyright law away from the Attorney-General George Brandis to the new Minister for Communications and the Arts, Senator Mitch Fifield. Just before Christmas, in December 2015, the Ministry for Communications and the Arts released an exposure bill, the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). The proposed legislation has several key components.

  1. The Marrakesh Treaty, Copyright Law and Disability Rights

Maryanne Diamond, ‘An Information Revolution for the Blind’

A number of prominent Australians pushed for the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Graeme Inness, Maryanne Diamond, and Ron McCallum provided eloquent testimony for the need for copyright law reform to address the problem of disability discrimination. The Director-General of the World Intellectual Property Organization Francis Gurry helped shepherd the agreement through the negotiations. The Australian Minister for Foreign Affairs, the Hon. Julie Bishop, has been a prominent supporter of the ratification of the agreement.

Australia has been a proud supporter of the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Australia ratified the agreement in December 2015. The Minister for Foreign Affairs, the Hon. Julie Bishop, emphasized : ‘Australians with vision impairment will have greater access to books and other published materials in accessible formats such as large print, braille or audio following Australia’s ratification of the Marrakesh Treaty’ She stressed that ‘the Treaty is a significant international agreement that will help 285 million people with vision impairment worldwide to access these materials.’ Bishop commented ‘Ratifying this treaty is an important part of the Government’s commitment to supporting Australians with disability. Accessible format materials are essential to ensuring all Australians can engage fully in school, work and our communities.’ She also observed: ‘By improving access to large print, braille and audio materials in the Indo-Pacific, the Marrakesh Treaty will also support economic and social development in our region.’

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to provide access to copyright works by persons with a disability. Section 113E (1) of the bill provides that ‘a fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to copyright material.’ Section 113E (2) considers a number of matters to be taken into account in an assessment of fair dealing. Section 113F deals with the use of copyright material by institutions assisting persons with a disability.

These amendments are certainly a significant improvement over the rather narrow, limited, and defective provisions currently found in Australia’s copyright laws. In its inquiry into Copyright and the Digital Economy, the Australian Law Reform Commission lamented

The digital era creates the potential for vastly improved access to copyright material for people with disability. However current legislative arrangements mean that this potential is not fully realised. The Copyright Act provides for a statutory licence for institutions assisting people with disability. The licence allows these institutions to make accessible versions of copyright works, but its scope of the licence is limited, the administrative requirements are onerous, and it has not facilitated the establishment of an online repository for people with print disability. The exceptions available for individuals—fair dealing, format shifting and the s 200AB ‘special case’ exception—are also limited in their scope. The widespread use of technological protection measures (TPMs) is creating significant barriers to access for people with disability.

The Australian Law Reform Commission recommended that access for people with disability should be addressed by a broad defence of fair use. The alternative proposal of the Australian Law Reform Commission was the introduction of a defence of fair dealing for the purpose of access for people with a disability. This fall-back option has been the one adopted and embraced by the Federal Government.


  1. Cultural Preservation

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) also proposes reforms in respect of copyright exceptions for public libraries, parliamentary libraries, and public archives.

Section 113H of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) provides that an authorised officer of a library or an archives does not infringe copyright by using material for the purpose of preserving the collection comprising the library or archives. This measure is subject to further procedural qualifications.

This reform is designed to address the rather clumsy way that Australian copyright law deals with cultural preservation. The moral rights regime has a clearcut exception for preservation. However, the system of economic rights has not dealt with the issue very clearly thus far.

There remain larger issues in respect of reforming copyright law for libraries, archives, galleries, museums, and other cultural institutions. In his book, BiblioTech: Why Libraries Matter More Than Ever in the Age of Google, John Palfrey reflects that ‘the law of copyright has become a hindrance when it comes to building strong libraries in a digital era.’ He observes that ‘librarians have been at the forefront of efforts to update the law to support their good works into the future.’ Palfrey concludes: ‘Without changes to current law and policy, librarians will have a terribly hard time accomplishing their public-spirited mission in support of people living in a democracy.’


  1. Cooking for Copyright


Cooking for Copyright at the QUT Library

In Australian, there has been much concern about the indefinite duration of copyright protection for unpublished works.

In response, Australian librarians held a Cooking for Copyright protest in 2015. Baking Bad, the librarians shared recipes of unpublished works on social media, and engaged in cooking festivals with the illicit recipes. The event was a runaway success, with massive media coverage of the issue, and wide popular support.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to address the issue in respect of term of protection. The Department of Communications and the Arts emphasize: ‘The proposed amendments seek to harmonise the copyright term for published and unpublished works by creating a new general protection period of life plus 70 years that does not differentiate between published and unpublished works.’ The legislation proposes that the general term of protection would apply to works made before 1st January 2018 that remain unpublished at that date.

The amendments also propose to deal with the situation of unknown authors, and Crown copyright.


  1. Safe Harbours

Since the passage of the Copyright Amendment (Digital Agenda) Act 2000 (Cth), Australia’s ‘safe habour’ regime has been limited to traditional service providers, such as telecommunications networks and internet service providers.

For many years, Google and other information technology companies have been lobbying successive Federal Governments for a more expansive definition of service providers. Such companies have been fearful of being exposed to copyright infringement lawsuits in Australia, without the protection of a ‘safe harbour’ regime. Copyright owners, though, have fought against an expansion of the ‘safe harbour’ regime.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) proposes to expand the current ‘safe harbour’ provisions in the Australian copyright legislation to include a broader range of entities.

  1. Parallel Importation

The Prime Minister Malcolm Turnbull and the Treasurer Scott Morrison have mooted the repeal of parallel importation restrictions in respect of books.

The parallel importation restrictions have been widely criticised by the High Court of Australia, the Australian Competition and Consumer Commission, the Productivity Commission, and Australian parliamentary investigations into IT Pricing.

There has been great concern that publishers have used parallel importation restrictions to keep book prices high in Australia, and to restrict foreign competition.

Rather shrilly, publishers and authors have accused the Turnbull Government of ‘ideological vandalism’.

However, looking at the text of the provisions, the parallel importation restrictions do not serve any direct purpose of protecting local cultural content.

Indeed, under international intellectual property agreements, the Australian Government would not be able to discriminate in favour of local authors and publishers, without breaching the basic principle of ‘national treatment’.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not contain, though, any legislative measures to repeal the parallel importation restrictions in respect of books.


  1. Fair Use

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not address the larger question of whether Australia should have a defence of fair use like the United States.

The Turnbull Government should go further and adopt a defence of fair use, as recommended by the Australian Law Reform Commission. The Australian Law Reform Commission observed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

A defence of fair use would be an agile, innovative, and disruptive policy option, which would help reinforce the Turnbull Government’s Innovation Agenda.

Professor Kathy Bowrey from the University of New South Wales noted that the policy papers of the Innovation Agenda did not address copyright law. She noted that ‘copyright rules and regulations sit behind all the agendas found in the innovation statement.’ Bowrey insisted: ‘If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions.’ She maintained: ‘Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.’

The failure to address fair use would leave Australian innovators, entrepreneurs, and digital disruptors at a significant disadvantage. Start-ups in Silicon Valley, Boston, and Brooklyn have been able to thrive, with the help of the protection afforded by the United States defence of fair use. By contrast, Australian innovators would be exposed to the threat of actions for copyright infringement, given the narrow and limited operation of the defence of fair dealing.

The problem would be further exacerbated by the possible passage of the Trans-Pacific Partnership. The Trans-Pacific Partnership would provide for stronger, longer copyright protection throughout the Pacific Rim, and empower incumbent copyright industries, rather than start-ups and digital disruptors. As Maira Sutton points out, the Trans-Pacific Partnership poses certain threats and challenges to copyright defences and exceptions – like the defence of fair use.


It is an exciting time to be a copyright lawyer in Australia. The new Prime Minister Malcolm Turnbull has shifted the Conservative Coalition back towards a more centrist position in respect of Australian copyright politics. He has emphasized that copyright law should not only protect the private interests of copyright owners, but it should also promote innovation, competition, and the larger public interest. There have been a number of modest but meaningful copyright law reforms mooted in the new Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). Such measures address longstanding problems in respect of copyright law and disability rights; cultural preservation; the copyright duration of unpublished; and safe harbours. The proposals are still provisional and contingent. It remains to be seen whether this bill will pass before the next Australian election. Turnbull and his Treasurer Scott Morrison have also considered the repeal of anti-competitive parallel importation restrictions. There is a need for the new Turnbull Government to address the Australian Law Reform Commission’s outstanding proposals in respect of copyright exceptions and the digital economy. A defence of fair use would be of particular help and assistance for Australia’s innovators, entrepreneurs, and digital disruptors. The future balance and equilibrium of Australia’s copyright laws will also be affected by the potential passage of the Trans-Pacific Partnership, with its expansive Intellectual Property Chapter.

rimmer2Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC), the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IL GG). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works.




Fair Use Week 2016: Day Four Interview With #WTFU Founders


In a video posted last week week, famous YouTube sensation The Nostalgia Critic laid out the amazing case against the “big media” who are using YouTube to bully independent creators, regardless of their right to fair use. He titled the beautifully articulated argument “Where’s the Fair Use?” and created the now famous hashtag #WTFU.  His argument brings to light many of the strange, and borderline abusive, devices used to take down videos that are clearly within the realms of fair use.

In honor of Fair Use Week, we present an interview with the team behind #WTFU:

Kyle K. Courtney (@KyleKCourtney): Before we get into the #WTFU controversy, please tell us a little bit about your work, and how fair use is a critical aspect of that work. [Channel Awesome]: We do a variety of shows that hinge on pop culture, but our most popular show is the Nostalgia Critic, a show that we have been doing for over eight years. The show revolves around reviewing movies, and with reviewing movies we show clips. The clips shown are either directly talked about as a voiceover during the clip’s presentation or after the clip has been shown. The discussion of the clips can direct criticism or commentary and in our newer videos these clips lead to a parody sketch. Fair use states that clips from movies and television can be used under the basis of commentary, criticism, education, and parody.
WTFUYour #WTFU video has gone viral among many different communities beyond your typical YouTube movie fanbase, including (from our research) lawyers, librarians, think tanks, IP policy makers, artists, documentarian, and more! (It has had over 1 million views, 100 thousand “likes,” and 15 thousand comments). What was the moment, or “the straw that broke the camel’s back” that caused you to make this video? This has been something that we have dealt with for most of our existence. We originally had to leave YouTube back in 2008 due to the constant copyright claims on our 5 Second Movies and early Nostalgia Critic episodes. Back then you didn’t have the ability to fight it, and after three claims your channel was gone. We started our own website  thatguywiththeglasses.com, now channelawesome.com) and used blip.tv to host our videos. We started bringing our content back to YouTube with the help of blip.tv in early 2013 on the League of Super Critics channel, and then we created our own channel in July of 2014. (achannelthatsawesome) We finally bit the bullet and started uploading our new Nostalgia Critic episodes in May of 2015 and started seeing what to expect on YouTube. Claims from people stealing public domain content and saying they owned it, false companies claiming content, and claims on dozens and dozens of Nostalgia Critic reviews. The videos that we recently made on the subject were something that we were planning to do for a while now, and with what has been happening on YouTube with people starting to really discuss it, it just seemed like the time was right. We were not getting any answers from YouTube or the people claiming our content, and the longer content creators stayed silent the more frequently this was going to happen.

We have talked about it before though. On the Tommy Wiseau Show, filmed during our The Room, How 5 Second Movies Work, and Leave 5 Second Movies Alone, both related to our initial exodus from YouTube.) Heck, we flew 10 people out to DC during the SOPA/PIPA fiasco and met with Representatives and staffers, informing them how those two laws would affect our small business.
You mention a few uses of the copyright takedown system being used for ulterior motives, outside of the protection from copyright infringement. One is the use of takedowns to suppress, scare, or censor opinion, speech, or viewpoint. Can you tell us more about that and its potential effect on all web-based content producers? Aren’t there repercussions for fake takedown abuses like this? The example provided by Jim Sterling is a perfect example on how companies can use the DMCA system to take down negative reviews; honestly, he sums this up perfectly.

As far as we know, there are no repercussions for false claims and takedowns, as these companies continue to do so, even after releasing manual claims and letting DMCA takedowns expire.

In your experience, which YouTube claims are more dangerous: the claims made through the rightholder’s automated algorithm or manual claims, which means a human being actually viewed and decided that their claim was valid? The takedowns done through DMCA are of course the most dangerous, at least on a creator’s account. YouTube automatically issues a strike after a DMCA claim is processed. Generally one strike on an account limits you to videos that are 15 minutes or less, but the most infuriating thing about what one strike does to an account is the fact that you can’t appeal any more claims while the strike is active. You can fight it and win (this can take 10 business days), but if you let it sit then that penalty would last for 6 months. On the other side, Content ID claims are just as bad in some cases. Through the automated system, using as little as 15 seconds of a piece of work can cause the Content ID system to place up to four different infractions on the video. 1) Tracking: they can track our videos stats (I have never seen this used). 2) Monetization is disabled: no one can make money off the video. 3) Monetization is taken: the claimant takes the money the video makes until the content owner files a counterclaim, and then no money is made on the video until the claim is resolved (this can take up to 3 months). 4) Blocked videos: this one most people aren’t talking about but I believe it’s the worst one. The claimant is basically getting the effect of a DMCA takedown without issuing one. A DMCA takedown requires YouTube to take the video down (no one can see it); a global block does the exact same thing. No one can see the video. Global blocks can be placed automatically after “infringing” content is found by the Content ID system without a human looking at. Companies are getting a DMCA takedown without the legal process of one!
I think one of the most shocking aspects of the video was the section where you cover the options for the takedown claimant, which includes, without proof of an actual, legitimate takedown, the fact that the claimant can take your monetization of a video (for those that are not YouTube savvy, this means engorging any profits made by the video producer) until you file a counterclaim, and even potentially keep that money. Can you talk about when this happened to your program? Could you recover that money at amonetizell?


This happens all the time. I believe we currently have nine videos being monetized by the claimant, and currently are fighting two of them. The system allows only three counterclaims to be open at a time on a YouTube account, well at least on the creator’s end. Filing three at once potentially could result in a channel deletion if all three come back with takedowns, plus what if we have a new video that gets claimed right out of the gate. We’d want to fight that right away. Our Event Horizon review was claimed a day after it went up on YouTube, and I guess luckily for us the claim was released in 2 days. We can’t recover the money. The period for when the video is claimed by the claimant and then countered by us results in the claimant keeping the money. After a counterclaim is in place, YouTube will not put ads on the video until the claim is settled. This results in lost money for the YouTube content creator if they win their case.

You talk about an uptick in the amount of takedowns issued over the last year. What do you think is driving this move? Honestly, we have theories, but really at this point they are just that.
These programs create “safe harbors,” why do you think legitimate content makers, like yourself, are being lumped in with pirates who are actually infringing? Intentionally? No. Unintentionally? Yes. The system currently in place is and has been abused for a while, and over time claimants have realized that they can claim anything and everything and not have a single repercussion. One of our friends, Brad Jones, had a video that had zero copyrighted footage in it claimed. That video was just he and a friend talking in a car about a movie they just saw. Another YouTuber, Chibi Reviews, had DMCA takedowns done on his account just because he used a thumbnail with a copyrighted image on it; nothing else in the video had anything remotely copyrighted. They’re just taking advantage of the system, because it allows them to.

The #WTFU video notes that you have changed your production in order to try to avoid getting these takedowns (not using clips, re-enacting scenes, etc.). Has this helped at all in lowering the amount of takedowns you have received? And, from a creator’s perspective, how frustrating is it that you have to change the way you make your show and, in fact, alter your creative output because of fear of legal action? Over the past 3 years we have been inserting sketches into content, shortening the clips used, muting any audio from the movie that we aren’t directly talking to or critiquing, and recently we started doing reviews with just reenactments and no footage. These are done on titles that we know will get claimed instantly. Having a new Nostalgia Critic episode claimed takes away a large chunk of money from us, and doing clip-less reviews is the only way to make sure we’re safe, but, as stated in above, even that might not be true going forward. Frustrating? Last year a new claim was a weekly occurrence while this year we’re dealing with claims almost every other day now. It’s tough to get through the backlog of claims when A) you have a bunch of them (we’re currently sitting on 14), and B) you really can only fight two at a time and hope it takes less than 3 months.

You recommend developing the same types of penalties in the system for copyright infringers as for those that make false claims. In your words, how would those “false claim penalties” work? For the false claim penalties, blatant repeat offenders need to have some sort of action placed on them. The tricky part is they all have some agreement with YouTube after the Viacom case, and with that said all these issues aren’t fully on YouTube’s end. YouTube will never get an OK from them to disable their claim process via Content ID because there are people who still upload full movies, television episodes, and music onto YouTube. So, penalties at least relating to Content ID would never happen.

What could help this is adopting a universal percentage used on content through the video. Fifteen seconds should not be the beginning of this and 20 seconds shouldn’t be the standard that they use. The EFF proposed 90% of the original work be what is considered infringing. Heck, we’d be fine with 40% becoming the new bar.

Then there are manual claims and DMCA takedowns. Manual claims mean that someone “viewed” the video and then claimed it as infringing. The DMCA has you state, under perjury, that you believe the video is infringing on your copyright. So, when these claimants check that little box about perjury, and then let the claim lapse after the counter DMCA is filed, shouldn’t perjury possible be brought to the table? Manual claims should be the same, as they are doing the same thing as a DMCA claim, by manually claiming that they saw the video and found it to be infringing. If the claimant issues a manual claim and releases the claim, or if the claimant issues a DMCA takedown and lets it lapse or releases the claim, then their ability to do so in the future for 6 months should be limited just as our accounts get limited by their actions.

The Lenz case was viewed as a victory for fair use over these abusive takedown claims. Why do you think the situation has gotten worse, despite the Lenz’s holding that requires a fair use inquiry prior to issuing a takedown notice? Currently, we don’t see any change resulting from that ruling.

On a side note, we have had videos of ours show on TV without asking our permission, and we’re fine with that. Most of the short videos used were shown under fair use. The people showing our videos edited them and then provided commentary or criticism on said video. Fair use is a two-way street. One party should not control both sides because currently the idea of a fair use defense only benefits them.

In the end, this problem, while running rampant on YouTube, is caused by the very outdated copyright law that we currently have here.  One of the more frustrating things to come from this is people telling us that this whole situation has them scared to continue doing their videos on YouTube, and then hearing others say that they’d love to start up a YouTube channel but the current system in place has them too frightened to even try.

Fair Use Week 2016: Day Three With Guest Expert Brandon Butler


In Defense of Fair Use: The Slow Food Movement Tells Us Something Important About Our Fair Use Rights

by Brandon Butler

Eat food. Not too much. Mostly plants.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of what we humans should eat in order to be maximally healthy.

Michael Pollan, Unhappy Meals, NY Times Magazine, Jan. 28, 2007. Available online here.

Use fairly. Not too much. Have reasons.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of how in-copyright works can be used lawfully under the fair use doctrine.

Food writer Michael Pollan has made a big impact on the way people think about what they eat. In a series of magazine pieces, books, lectures, and a recent documentary, Pollan has proposed a kind of paradigm shift, away from what he calls “nutritionism” and toward a simpler approach to healthy eating embodied in his seven-word epigram, “Eat food, not too much, mostly plants.”

I’m a big fan of Pollan’s thinking and writing, and not just because my law clinic students helped to vet the fair uses in the PBS documentary about him (#humblebrag). The forces he describes as shaping (and misshaping) the way we think about food are actually at work in many areas of life. Indeed, almost everything Pollan says about our dysfunctional relationship to food is in some sense true of copyright law, and especially of the doctrine of fair use. Let me explain.

The Problem: A Pseudo-scientific and Alienating Ideology


Pollan calls our dysfunctional relationship with food “nutritionism.” In “Unhappy Meals,” he describes nutritionism as:

not a scientific subject but an ideology. Ideologies are ways of organizing large swaths of life and experience under a set of shared but unexamined assumptions.

… In the case of nutritionism, the widely shared but unexamined assumption is that the key to understanding food is indeed the nutrient. From this basic premise flow several others. Since nutrients, as compared with foods, are invisible and therefore slightly mysterious, it falls to the scientists (and to the journalists through whom the scientists speak) to explain the hidden reality of foods to us. To enter a world in which you dine on unseen nutrients, you need lots of expert help.

Eaters in the throes of nutritionism are bombarded with the latest theories about which nutrients are good for them and which are bad. They go to the grocery store looking for foods that proclaim an abundance of fiber, or the absence of carbs, for example. This orientation systematically favors processed foods over natural foods, as the former can be easily engineered and branded to fit the latest trendy research. It disfavors simple foods like fruits and vegetables, and nutrient-blind advice like “eat less.” Instead, we are led to believe that so long as our cookies and beer are low-carb or rich in “good” cholesterol, or whatever, we can eat and drink as much as we like.

Fair Use

The situation is alarmingly similar where fair use is concerned, thanks to what I call “copyFUD.” For years our basic orientation toward copyright has been one of fear, uncertainty, and doubt, with the sense that whatever it is that makes acts infringing or fair, it’s not something ordinary people can see or understand. No one can know what their rights are without a judge’s pronouncement, or at least a lawyer’s very expensive professional opinion. Even advocates who claim to speak for the public interest have said things like “Fair use is just the right to hire a lawyer.” Ouch.

Just as nutritionism leads you to the tender mercies of processed foods, copyFUD leads you to cramped guidelines and needless licensing. You cling to advice like “Fair use allows 10% or 1000 words, whichever is shorter,” or “Fair use is just an affirmative defense, so if you can buy a license, then you had better pay up.” According to copyFUD, the law, like the microscopic particles that make food good or bad, is not something an ordinary person can perceive or understand. Count calories, count words and pages, consult obscure legal-looking guidelines. Buy some low-fat Oreos™ and a blanket license from someone or other and everything will be OK. Anything else would be irresponsible.

The Root Cause: Money (duh)


Like so many things, nutritionism and copyFUD have their roots in the machinations of people whose salary depends on your believing them. Pollan suggests that national policy may have been set on a course toward nutritionism thanks to the interventions of the meat and dairy lobbies into a congressional committee on US dietary needs in the late 1970s:

Responding to an alarming increase in chronic diseases linked to diet — including heart disease, cancer and diabetes — a Senate Select Committee on Nutrition, headed by George McGovern, held hearings on the problem and prepared what by all rights should have been an uncontroversial document called “Dietary Goals for the United States.”

…the committee drafted a straightforward set of dietary guidelines calling on Americans to cut down on red meat and dairy products. Within weeks a firestorm, emanating from the red-meat and dairy industries, engulfed the committee, and… [t]he committee’s recommendations were hastily rewritten. Plain talk about food — the committee had advised Americans to actually “reduce consumption of meat” — was replaced by artful compromise: “Choose meats, poultry and fish that will reduce saturated-fat intake.”

The change may seem subtle, but its effects were stark. As Pollan observes,

“the new language exonerates the foods themselves; now the culprit is an obscure, invisible, tasteless — and politically unconnected — substance that may or may not lurk in them called ‘saturated fat.’”

So long as the food could be manipulated or branded in a way to highlight this or that nutritional characteristic, there was no risk of anyone “eating less” (or buying less) of anything.

Fair Use

Similarly, when it came time to rewrite the copyright law (coincidentally around the same time Senator McGovern’s committee was meeting to delibarate about diet), the question of how to protect the interests of the public (especially teachers and students) presented a challenge to publishers and others whose bottom lines would swell if permission or payment was required for every new use of copyrighted materials. Publishers were ultimately able to convince key congressional committees to reject the call for a blanket exemption for educational uses and rely instead on flexible fair use. Some educators’ representatives then negotiated a set of non-binding “Guidelines” that, as McGovern’s commmittee had done, replaced broad and flexible principles (more on those later) with a strained and miserly gloss literally designed to ensure fair use would not touch anyone’s bottom line.

The House Judiciary Committee dutifully included these Guidelines in the legislative history of the Copyright Act of 1976, and they have haunted educators ever since. These Guidelines were initially characterized as a “safe harbor,” i.e., a bare minimum of agreed-upon uses, but thanks to the “right to hire a lawyer” copyFUD that quickly sprouted up around fair use, the Guidelines were often treated as the outer limits of fair use.

The Solution: A Cultural, Ecological Approach


The antidote to nutritionism, Pollan says, is to take “a broader, less reductive view of what food is, one that is at once more ecological and cultural.” Healthy eating, Pollan argues, has always been a matter of being in the right kind of relationship with other organisms in a balanced ecosystem.

Species co-evolve with the other species they eat, and very often a relationship of interdependence develops: I’ll feed you if you spread around my genes.

These relationships are highly complex and involve interactions between multiple aspects of both the eater and the eaten. Most importantly, they are relationships to whole foods, not to nutrients. Their development over time has endowed us with a natural sense of which foods are good for us and when – what looks ripe, what smells delicious, and so on. Processed foods that give us heaps of this or that nutrient but eliminate others, or fool us with artificial color, flavor, etc., undermine that natural sense and lead us astray. Once we think of food at a macro level, we can see where the typical American diet has gone astray and start to see the kinds of changes that would bring us into a better relationship to our food.

Fair Use

What does a cultural, ecological, macro-view of fair use look like? Well, it’s exactly the view we find in the US Constitution, which instructs congress to make copyright and patent laws that “promote the Progress of Science and the useful Arts.” Progress in culture requires a legal system that allows ideas to move and new generations to make new uses of existing works. That, in turn, requires a healthy ecology of makers, fans, teachers, students, collectors, curators, distributors, describers, and on and on.

Like Pollan’s eaters, our senses of fairness, of legitimate community practice, the norms, values, and relationships that have grown up around production, consumption, and reuse of culture over time can give us intuitions about when use-without-permission will make the system work, and when it will undermine the system’s healthy functioning. To a much larger extent than the copyFUD acknowledges, we can intuit when a use is fair and when it is an infringement by engaging our sense of fairness, proportionality, and reason.

My version of Pollan’s epigram is, “Use fairly. Not too much. Have reasons.”

Use Fairly

Like “Eat food,” “use fairly” sounds so broad that it’s almost useless, but just a little elaboration is enough to give it some shape, and to connect it to the caselaw. The core of fairness in this context, as courts have told us from the beginning, is that a fair use is not a “merely superseding” use; in other words, a fair use takes from an existing work without displacing it (or its typical derivative works, like film adaptations and sequels) in the market. Some courts (the ones with a more economic orientation) talk about fair uses being “complementary,” which is a similar notion.

A book review is a good example of a non-superseding fair use. A good review can give deep insights into a book’s themes, strengths, and weaknesses, but it is still no substitute for reading the book. It’s a complement to the book—it helps readers to understand and appreciate the book, and (most importantly) to decide whether to read it. Authors, publishers, and reviewers understand that all are better off in an ecosystem where reviewers can copy from their subjects as part of their reviews without payment or permission.

Another touchstone of fairness, and in a way the converse of “not superseding,” is to do something different or new, and to add value with your use. Search engines are a great example of this. Search engines work by copying the full text of the works they index, and some have argued that this means that by definition they do not add value. In reality, of course, anyone who tried to use the internet before good search engines can tell you exactly what a good search tool adds to the pages it copies. And, importantly, a search engine doesn’t replace the pages it searches; internet users still click through to explore the results.

These two aspects of fairness—non-superseding and different/new/value-added purpose—are captured in the legal concept of “transformativeness.” Some critics of recent fair use case law have tried to portray “transformative use” as having gone too far and somehow swallowed the doctrine. In reality, however, “transformative” is just the latest short-hand for this very old notion of fairness. Courts and practitioners lost sight of these basic concepts for a while, distracted by copyFUD and an obsession with highly technical arguments about market failure. The courts’ turn to transformative use is, in its own jargon-y and technical-seeming way, a Pollan-ist return to fundamental principle. The world outside of the courts is now catching up to this shift.

Not Too Much

For a long time, from at least the late 1970s all the way into the 1990s (and in some places still today), “how much?” was considered the key question, if not the only question, to ask when deciding if a use was fair. If you used a sufficiently minuscule amount, your use might be fair. Once you crossed some arbitrary line, however, your use became infringing. This was the approach of the aforementioned 1976 Classroom Guidelines, which gave miserly minima for a variety of contexts—1000 words or 10% whichever is less, etc. More recently, the district court in the Georgia State University e-reserves case used a hard quantitative line as part (though not all!) of its fair use calculus; that part of the opinion was overturned on appeal.

Nowadays it’s clear that there is no simple answer to the question of “how much is too much” for fair use, and that’s a good thing. The appropriate amount depends on what you’re doing with the material. Sometimes, as with search engines or critical use of images, the entire work may be the appropriate amount. In other contexts, as in book reviews, the appropriate amount to achieve your new purpose will be much shorter.

One important final point on the question of amount: necessity is not the standard. Some guides say that you should use no more than is necessary for your purpose, but courts have said clearly and repeatedly that the question of amount is less miserly than that. “Not too much” captures it nicely: it should be an amount that makes sense in light of your purpose.

Have Reasons

This last point is a bit “meta”—it’s not so much about how to know your use is fair as it is about how to be prepared to defend your use if there are ever questions or concerns. In a way, it amounts to not much more than “Be thoughtful.” But, if you want to be more specific, you should be prepared to account for your use with a clear story addressed to the first two parts of this epigram: Why is your use fair in a colloquial sense—not a mere substitute, but something new and valuable in its own right? And why is the amount you used not too much, given your purpose?

Having reasons is easier when you can point to community practices that help explain at a high level why certain kinds of recurrent uses are typically fair, and ways to tailor your use to stay within the bounds of community norms.


So, that’s it. Use fairly. Not too much. Have reasons. In some ways it’s not as “easy” as counting words or paying for potentially needless licenses. But, like buying, preparing, and eating good food, making healthy fair use is deeply rewarding. It keeps the cultural ecosystem in balance, too.


Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He is also Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2016: Day Two With Guest Expert Krista Cox


Thankful for Fair Use

by Krista Cox

Fair use is a critical right in U.S. copyright law, permitting the use of copyrighted material without permission from the rightholder under certain circumstances. It has been called the “safety valve” of U.S. copyright law, responsive to change and able to accommodate new technologies and developments. Amending copyright law is not an easy task; the 1976 Copyright Act took twenty years to enact (and was where the fair use doctrine was officially codified, though it was certainly not a new doctrine). Fair use, as a broad and flexible doctrine, therefore allows copyright law to adapt to the changing environment and technologies and preserve the important balance in the law without requiring constant legislative attention.


Here are just some of the ways we rely on fair use each day in ways that were inconceivable when the doctrine was codified by the 1976 act, much less in 1841 when Folsom v. March (which forms the basis of the fair use doctrine) was decided:

  • Checking e-mails.
  • Forwarding e-mails and attachments.
  • Watching and sharing news clips online
  • Using social media, such as Facebook and Twitter.FUW.Infographic2
  • Recording shows with a DVR to watch later.
  • Sending a show from a DVR to a mobile device to watch.
  • Using a web search engine like Google or Bing.
  • Using Shazam or other sound search.
  • Reading a book on an iPhone.

We rely on fair use each day because of the prevalence of technology. For example, temporary copies are constantly being made when we access webpages or open e-mails and attachments. These copies could be unauthorized reproductions, but thanks to fair use, copyright law accommodates these advances in technology without requiring legislative changes. Without fair use, the growth of the Internet and technology as we know it today would not be possible. Flexibility in the fair use doctrine has already led to these new innovations and can continue to promote the progress of science and the useful arts for technology that we may are not even able to conceive of today.

Of course, fair use is not limited to new technologies or to those listed above. ARL’s “Fair Use in a Day in the Life of a College Student” infographic, released as part of the Fair Use Week 2016 celebration, for example, demonstrates how often a college student encounters fair use on a daily basis, often without even realizing that she is relying on this critical doctrine.


From checking her e-mail, forwarding messages, doing research, writing papers, sharing information over social media, watching recordings of popular shows, taking selfies and more, the average student relies on fair use constantly. Fair uses are all around and we should be thankful that the broad, flexible fair use doctrine accommodates new ways of communicating, sharing, learning, researching, enjoying entertainment and more.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2016: Day One With Guest Expert Kenneth D. Crews



Welcome to the 3rd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  We are proud to once again be hosting a week full of activities, celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panels on Tuesday Feb. 23rd, Wednesday, Feb. 24th, and Friday, February 26th.  For more information see http://bit.ly/fairuseweek16

We are delighted to kick off this year’s celebration with a post by Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  


Fair Use: A Place in the World

by Kenneth D. Crews

Like so many scholars and commentators from the past and into the future, I have made the familiar observation that fair use is a distinctly American doctrine.  We trace its origins principally to an 1841 court decision handed down by the brilliant and influential Justice Joseph Story.  We repeat these chronicles and adages because they are among the essentials of fair use doctrine.  Fair use makes especially good sense in a legal system built on the adaptability of the common law and that fosters enterprise and creativity; Justice Story did articulate factors that are fundamental to our law today.  Indeed, I would dare say that fair use is not only about innovation, but it is also about diversity and business growth – hallmarks of American society.

It may, therefore, be with a bit of pride and confidence that I watch fair use become an increasingly international doctrine.  I am not trying to jingoistically unveil an American rule for all the world.  But I am comfortable in saying that flexibility in copyright law encourages creative scholarship, nurtures modern art, enables search engines for the web, and empowers teachers and students to pursue innovative teaching and learning.  Fair use also has proven to be downright practical.  It avoids an unduly strict reading of copyright in order to allow socially beneficial uses to prevail over often formalistic claims of copyright infringement.

The benefits of fair use have become increasingly vivid in an era of new technologies, diverse copyrighted works, unpredictable uses, and sometimes unstoppable pressure to experiment and explore.  As a result, this distinctly American doctrine has been invited into the law of a growing list of countries.  It has proven desirable, practical, and even necessary to get good things done.

In reality, fair use has a close foreign cousin, the doctrine of “fair dealing,” long part of copyright law in the United Kingdom and in many former British colonies.  Fair dealing has the virtues of flexibility, but it is often statutorily confined to specific applications such as research and education, so fair dealing would not likely sanction appropriation art or reverse engineering of software.  Moreover, while the factors in the fair dealing statutes may be similar to the fair use factors, courts have not given them the robust interpretations we find under fair use.  The more fluid application and scope – the “open norms” of fair use – continue their allure.

Bernt Hugenholz and Martin Senftleben have written brilliantly on court rulings that have been handed down in recent years the European Union countries that do not have fair use, but where the courts strive to find some means to infuse flexibility into national copyright laws.  Jonathan Band and Jonathan Gerafi in 2013 compiled in an important report the various fair dealing and fair use statutes found in dozens of countries.  Their study makes clear that a surprising number of countries are enacting statutes embodying language essentially identical to the American statute on fair use.

Fair use takes other routes, too.  The international nature of commerce and communication means that courts in one country often need to apply foreign law to decide cases, where events occur in multiple countries.  A court in Paris, for example, applied American fair use in a case against Google, although that ruling was overturned on appeal.  But just last year, a British court heard testimony from US experts and handed down a detailed ruling on fair use as applied to vintage videos of a Beatles concert.  Fair use, or some variation on it, is finding a home in diverse parts of the world.

That list is growing.  As I have studied copyright around the world, I find an escalating desire for fair use in many countries.  Not everyone will be enamored that fair use facilitates digitization for Google Books and the appropriation art of Richard Prince.  However, on a daily basis, fair use supports education, fosters business ingenuity, and opens technological enterprise.  It offers much to like.

In June of last year, I completed a comprehensive study of copyright exceptions applicable to libraries and archives for the World Intellectual Property Organization.  As I analyzed statutes from all 188 countries that are members of WIPO, I kept watch for any indications of fair use or variations on the familiar four factors creeping into national law.  Some of my findings on that score parallel the 2013 study by Band and Gerafi mentioned above.  In the context of the WIPO study, however, the language and spirit of fair use became a vital complement to library statutes that are often limited to specific uses under detailed conditions.

Diverse countries such as Israel, Liberia, Philippines, South Korea, and Sri Lanka are adopting the fair use almost verbatim from the U.S. statute.  A few countries go their own direction.  Laos enacted copyright law recently in 2007, amended in 2011, which includes a fair use reference (Article 111), but with sparse guidance from the statutory language.  A few Latin American countries (Dominican Republic, Ecuador, Guatemala, and Honduras) have a statute labeled “fair use,” but the substance is based on the treaty language of the “three-step test.”  While bringing that treaty language into domestic legislation raises a host of concerns, the effort to infuse some flexibility into the statutory exceptions and find appropriate local meaning of fair use gives much to applaud.

This quest for fair use around the world is no accident.  It is demand.  The demand is from public citizens who want to improve teaching and research.  It is from business leaders who want to build innovative software and develop crucial databases.  It is from publishers who need to include images and other materials in their new books and journals.  As I have visited distant parts of the world to talk about copyright, fair use is almost certain to jump into the conversation.  I have found myself in deep discussion of fair use possibilities in such places as Nepal, Armenia, Colombia, Ecuador, Finland, Azerbaijan, Nigeria, Kuwait, Uruguay, and many more destinations.

Fair Use Week may be a distinctly American holiday.  It probably already involves shopping and costumes.  But recent events demonstrate that fair use and its celebrations are quickly becoming a worldwide movement.


Kenneth D. Crews is based in Los Angeles, where he is of counsel with the firm of Gipson Hoffman & Pancione and represents universities, publishers, authors, research institutions, and many other clients on copyright and related matters.  Dr. Crews is also a faculty member in the Munich Intellectual Property Law Center and at Columbia Law School, and he is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (ALA, 3rd ed., 2012).




Fair Use Week: Day Five With Guest Expert Dr. Matthew Rimmer


For our final blog post of the week we are honored to welcome Dr. Matthew Rimmer.  Dr. Rimmer is an Australian Research Council Future Fellow working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law and an associate director of the Australian Centre for Intellectual Property in Agriculture.



Who Killed Fair Use? A Copyright Murder Mystery

Down Under



by Matthew Rimmer

Fair Use Week has been celebrated this week in the United States, with great gusto and enthusiasm. At Harvard Library, Kyle Courtney commented: ‘Fair use is critical and important to innovation, scholarship and research in the United States.’ Kenneth Crews emphasized that ‘the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.’  Legal director Corynne McSherry of the Electronic Frontier Foundation has highlighted the significance and the importance of the defence of fair use: ‘Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate.’ For Techdirt, Mike Masnick has emphasized that fair use is a right – and not an exception or a mere defence. Peter Jaszi and Pat Aufderheide have highlighted the contextual operation of fair use in particular artistic communities. Molly Van Houweling of the Authors Alliance has written about the ecstasy of influence – the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation.

While fair use has been feted and celebrated in the United States, fair use has been under attack, both in the United States, and in other jurisdictions. Fair use is in peril. Copyright owners have sought to confine the operation of fair use in litigation in the United States, and in policy debates. Political lobbyists have sought to prevent the adoption of fair use in Australia, and other countries elsewhere in the Pacific Rim. Fair use has been undermined and undercut by intermediary liability schemes, technological protection measures, and contract law. Moreover, fair use has been threatened by international trade agreements – such as the Trans-Pacific Partnership.

In his book Republic, Lost, Professor Lawrence Lessig observed that copyright reform would be unobtainable until there was substantive reform of political donations and lobbying in the United States. He noted: ‘Between 1998 and 2010, pro-copyright reformers were outspent by anti-reformers by $1.3 billion to $1 million – a thousand to one.’ Lessig emphasized that such political donations distorted policy-making in respect of copyright law in the United States across a range of topics – including the copyright term extension; copyright exceptions; and copyright enforcement. The problem has been further accentuated by the decision of the Supreme Court of the United States in Citizens United – which allowed for greater contributions of ‘Dark Money’. Professor Zephyr Teachout has highlighted such problems in the political and judicial process in her book, Corruption in America.  There has been concern in that United States that copyright owners have been trying to curtail the sweeping defence of fair use in the debates over the reform of copyright law. The language of ‘fair use creep’ has been deployed by copyright owners.

In Moral Panics and The Copyright Wars, William Patry said that ‘the current piracy campaign is intended to create a negative association with all acts not authorized by copyright owners, including uses that are clearly fair use and therefore, lawful, such as non-commercial copying for personal use.’ He emphasized how copyright owners sought to confine and limit the scope of copyright exceptions. In his book, How to Fix Copyright, William Patry again highlighted the moral panic over fair use promoted by the copyright industries. He said that ‘the rhetorical device of turning fair use into a moral panic is made by those who oppose adapting copyright to the digital era.’ Patry commented: ‘Fair use thus serves as a classic moral panic: an effort by vested interests to preserve the status quo through creating a false enemy whom, we are told, must be vanquished for the alleged good of society as a whole.’

Legacy copyright industries have sought to frustrate, delay, and block the introduction of broad copyright exceptions – such as the defence of fair use – overseas. In this context, Australia is an illustrative case study. Over a number of decades, there have been a number of policy inquiries, which have recommended the adoption of a defence of fair use under Australian copyright law. Yet, copyright owners have engaged in a concerted effort to block the adoption of such recommendations at a political level. There has been a campaign to kill and murder fair use before it has a chance to develop in Australia.

In 2014, the Australian Law Reform Commission announced the publication of its report on Copyright and the Digital Economy. The centrepiece of the report was the proposal for the introduction of an open-ended defence of fair use for Australia. The Commission stressed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.


The report emphasized that a defence of fair use would be particularly useful to address emerging trends in the digital economy – such as 3D printing, additive manufacturing, Big Data, cloud computing, and the Internet of Things (IOT). Professor Jill McKeough – who was in charge of the inquiry – has highlighted the importance of access to content under copyright law.


Professor Jill McKeough on Copyright Law and Access to Content (2015)


In response, copyright owners waged a political lobbying campaign against the introduction of a defence of fair use in copyright law. Film and Television groups – including Roadshow – and Rupert Murdoch’s News Limited railed against the introduction of a defence of fair use in Australia. The copyright owners engage in ‘swiftboating’ and accuse of the defence of fair use of being alien and foreign, uncertain and indeterminate, expansive and avaricious. The copyright owners have wanted to kill the fair use proposal stone-dead. In the election year of 2013, Village Roadshow – the makers of the Lego Movie and Mad Max – made substantial contributions, both to the Liberal Party of Australia, and the Australian Labor Party. The film company has pushed for greater rights and remedies for copyright owners; and limits upon the operation of copyright exceptions. The new Attorney-General George Brandis has long been a supporter of a copyright maximalist position. He worked closely with the copyright industry in considering the question of copyright law reform in Australia. Freedom of information requests by Josh Taylor revealed that the Attorney-General George Brandis had consulted narrowly with copyright owners, such as Village Roadshow and Foxtel – but had snubbed consumer groups, internet service providers, and public interest groups.


Sympathetic to the concerns of copyright owners, the Attorney-General George Brandis dismissed the introduction of a defence of fair use into Australia out of hand. He suggested: ‘These recommendations will no doubt be controversial and the Government will give them very careful consideration.’ Brandis was particularly concerned about enhancing the rights and remedies of copyright owners: ‘We are particularly concerned to ensure that no prejudice is caused to the interests of rights holders and creators, whether the proposed fair use exception offers genuine advantages over the existing fair dealing provisions and that any changes maintain and, where possible, increase incentives to Australia’s creative content producers.’ He maintained: ‘Without strong, robust copyright laws, they are at risk of being cheated of the fair compensation for their creativity, which is their due.’ Brandis insisted: ‘It is the Government’s strong view that the fundamental principles of intellectual property law that protect the rights of content creators have not changed, merely because of the emergence of new media and platforms.’ He observed: ‘In this changing digital world, we must look for the opportunities, but in reviewing the intellectual property laws, the Government has no intention of lessening rights of content creators to protect and benefit from their intellectual property.’


At estimates in December 2014, Senator Jacinta Collins of the Australian Labor Party questioned the Attorney-General about what, if any, progress had been made in respect of copyright law reform. She asked: ‘Can you advise us on what progress has occurred since February?’ Senator George Brandis responded:


It is under consideration by government. The online piracy issue has been identified as a specific area of reform within the broader topic of overall reform of the Copyright Act, and the effort and public discussion in relation to copyright reform in the past year have been largely focused on that particular topic. Broader reform of the Copyright Act is a matter for the future.


Senator Jacinta Collins pointed out that copyright enforcement was outside the terms of reference of the inquiry: ‘That topic was not really covered by the Law Reform Commission report, was it?’ Senator Brandis refused to give an indication of the time frame for the main areas of the Government response to the Australian Law Reform Commission report. He said: ‘The question of the fair use exemption is as, if you follow this area, you would know, one of the more vexed debates.’ Avoiding the question, the Attorney-General said: ‘Whether we have a general fair use exemption or whether we have more particular categories of exemption, my views are as I expressed them to be.’


Instead of fashioning a copyright defence of fair use, or even making reforms to current copyright exceptions, the Attorney-General George Brandis has pushed for the introduction of a new copyright code, governing intermediary liability in respect of Australian copyright law. A draft Copyright Notice scheme has been developed. There has been much disquiet about the operation of the new ‘Three Strikes’ copyright crackdown by commentators such as Adam Turner, Claire Reilly, David Swan, and Josh Taylor. Jeremy Malcolm, an Australian policy analyst working with the Electronic Frontier Foundation, makes the point:


Meanwhile, as Australia fusses around with policing copyright against Internet users in a likely vain attempt to curtail piracy, it is missing the opportunity to make a much longer-term investment in the country’s technological future. Back when Australia’s Attorney General first began talking about instituting a graduated response regime, he also passed up the chance to embrace the Australian Law Reform Commission’s recommendation that fair use be added to copyright law. In Fair Use Week, it bears asking—is the adoption of a copycat graduated response scheme that has failed elsewhere in the world really going to do more for homegrown creativity and innovation than embracing fair use?


In addition, the Attorney-General George Brandis and the Coalition Government have been supportive of the introduction of Data Retention regime.  There has been concern that such data could also be deployed in copyright disputes – whether by copyright owners in civil disputes, or law enforcement agencies like the Police in criminal disputes.


Joint Press Conference on Data Retention Measures with Attorney General George Brandis and Malcolm Turnbull


Digital locks – known by the jargon ‘technological protection measures’ – also pose a significant threat to copyright exceptions, such as the defence of fair dealing, and the defence of fair use. Corynne McSherry of the Electronic Frontier Foundation observes: ‘Fair use has been under assault for decades, thanks to laws like Section 1201 of the DMCA, which makes it illegal to bypass a technical protection measure under most circumstances even if your conduct is an otherwise lawful fair use.’ In his book, Information Doesn’t Want to Be Free: Laws for the Internet Age, Cory Doctorow highlights the folly of digital locks, technological protection measures, and copy protection. He discusses the collateral impact of digital locks upon creativity, innovation, and freedom of speech. Doctorow has started Apollo 1201 with Electronic Frontier Foundation as a Moon-Shot project to rid the world of digital rights management. He maintains: ‘We all deserve a better future—one without DRM.’

Contract law also poses a significant threat to copyright exceptions. In the Australian debate, film and Television groups – including Roadshow – have maintained that they should be able to contract out of copyright exceptions, as part of the operation of the marketplace.

Senator Scott Ludlam of the Australian Greens on the Trans-Pacific Partnership (2015)


International treaties also pose a real and dangerous threat to copyright exceptions and access to knowledge. On the 12th February 2015, Senator Scott Ludlam of the Australian Greens expressed concerns in the Australian Parliament that Australia’s copyright exceptions would be affected by the Trans-Pacific Partnership:

We effectively imported some of the worst aspects of US IP law, without their protections. The US has fair-use clauses, which mean that you cannot be prosecuted under US intellectual property law for doing stuff that is quite clearly not impinging on profits—commercial-scale piracy and that kind of stuff. In Australia the situation is very much unclear, and it appears that the Trans-Pacific Partnership, from what we know of the IP chapters, will make that situation much worse.


Ludlam is also concerned that copyright owners will deploy investor-state dispute settlement against the introduction of copyright reforms. He fears: ‘If we sign up to the Trans-Pacific Partnership, which then embeds all kinds of property rights that did not exist before, for the rights holders—if this parliament then decided to do as the Australian Law Reform Commission recommended and institute a fair-use regime, that could be struck down by unelected trade bureaucrats in a tribunal, and the Australian government might choose to not even contest what would likely be a very expensive and extensive arbitral process.’ Ludlam expressed his concerns that the threat of investor actions could have a chilling effect upon progressive copyright reform in Australia.

Far from being a privilege only available in the United States and a few countries, fair use should become the norm and the standard in Australia, the Pacific Rim, and across the world. The integrity of fair use needs to be further protected from collateral attacks from political lobbyists; intermediary copyright law; technological protection measures; and contract law. Fair use needs to be able to flourish and grow, without political interference or legal sabotage.


Dr. Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPodIntellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological InventionsIncentives for Global Public Health: Patent Law and Access to Essential MedicinesIntellectual Property and Emerging Technologies: The New Biology, and Indigenous Intellectual Property: A Handbook of Contemporary Research. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.


Fair Use Week 2015: Day Four Featuring Professor William Fisher’s Copyrightx Class









For our fourth entry this week, we are privileged to share the newest lecture on fair use from Professor William Fisher, the WilmerHale Professor of Intellectual Property Law at Harvard Law School and Faculty Director at the Berkman Center for Internet and Society.  This lecture is part of Professor Fisher’s CopyrightX course:  a twelve-week networked course, offered each Spring under the auspices of Harvard Law School, the HarvardX distance-learning initiative, and the Berkman Center for Internet and Society.  The course explores the current law of copyright and the ongoing debates concerning how that law should be reformed.  This particular lecture, which will be featured in week 9 of the class, is titled “Fair Use Today.”   Many thanks to Professor Fisher for sharing it ahead of the official class release.



Fair Use Week 2015: Day Four with guest expert Niva Elkin-Koren

For our third entry this week, we are excited to feature Prof. Niva Elkin-Koren, Faculty of Law at the University of Haifa, Israel and founding director of the Haifa Center for Law & Technology.



Fair Use: Rights Matter


Fair use is often celebrated as essential for access to knowledge (A2K), and the wide adoption of fair use is often viewed as key to its success. The flexibility rendered by this open norm has certainly enabled courts to adjust exceptions and limitations in a rapidly changing world. Many countries worldwide are seriously considering adapting more flexible norms to address these challenges. However, fair use in and of itself might be insufficient to counterbalance the emerging challenges to open access. We have reached a point where many of the threats to access we face nowadays lie beyond copyright. We might be entering a phase where copyright is taking a back seat, making room for more powerful mechanisms which govern access to cultural works. In light of these changes, a more comprehensive approach to user rights might be necessary.

New challenges to A2K

The rise of cloud computing and mobile Internet has transformed the delivery of content from the sale of copies to the provision of services. Rather than buying books, CDs and DVDs, we are now offered access to eBooks, all-you-can-eat online music subscription and movie streaming services for a monthly fee. The shift from copies to services places control over content in the hands of the service providers. Users lack perpetual control over physical copies. Restrictions on copying, playing and re-mix are set by design, and overall, access to content may expire at any time. A striking example of the lack of user control over a purchased digital copy is the Orwellian 1984 saga in which Amazon.com remotely removed from Kindle purchased copies of George Orwell’s book 1984 due to some copyright concerns. Following a public outcry, Amazon.com apologized and later settled a class action brought against it for violating its terms of service by its remote deletion.

The legal restrictions set by copyright are now supplemented by contractual restriction and control by design. The scope of permissible uses in content is increasingly set by Online Intermediaries Terms of Use (ToU) and End User License Agreements (EULAs). Contractual terms may restrict the right to resell digital copies, limit the right of perpetual use, set limits on educational use, or prohibit reverse engineering, remix, and e-lending by libraries.

Much of online copyright nowadays is enforced by online intermediaries and embedded in their design. Algorithms filter, block, and disable access to allegedly infringing materials. Ubiquitous practices of monitoring and automated filtering by online platforms create further layers of protection which may threaten access to knowledge. Some platforms (such as YouTube) have even turned this into a business model (like Content ID). The choices made by the online intermediaries on filtering, removing, disabling uses or blocking access to online materials lack any transparency and legal oversight. There are numerous anecdotal examples of erroneous removals and blocking access to non-infringing materials (false positive), but its overall scope remains unknown. Clearly however, the removal of non-infringing materials, which might be legitimately used without needing a license, threatens access to knowledge. The robustness of algorithmic filtering, removal and blocking practices is effectively changing copyright default. If copyrighted materials were once available, unless proven infringing, materials detected by the algorithm are now unavailable unless explicitly authorized by the copyright owner.

Overall, these developments in law, design and business models limit the freedom of users to access, experience, transform and dispose of copyrighted (and non-copyrighted) materials.

Is fair use sufficient?

The fencing of cultural works by licenses and algorithms call for a different approach to addressing the freedom of access protected under fair use.

Some courts have a taken a rather narrow approach to fair use, viewing it merely as a legal defense. Fair use as a “defense” authorizes the court to avoid rigid application of copyright exclusive rights, and to hold an otherwise infringing use as non-infringing in particular circumstances. Consequently, fair use may only come into play when a copyright infringement claim is made by copyright owners. Yet, in the emerging environment of licenses and algorithms, copyright is neither the problem nor the solution. Fair use as a legal defense is mostly irrelevant to many of these legal frameworks, and consequently the Legal Defense Approach to fair use might be insufficient to counterbalance these developments.

Others perceive fair use not simply as a legal defense but as an integral mechanism set forth by copyright law to achieve its goals. From this perspective, fair use doctrine critically limits the scope of the monopoly granted to authors under copyright law. It is set to identify the circumstances where unlicensed use should be permissible in order to promote the goals that copyright law seeks to achieve. Consequently, uses that fall under fair use are not simply non-infringing but in fact are desirable, therefore permissible. The right to perform these uses without a license derives from copyright intended goals.

A User Rights Approach to fair use presumes that incentives to authors provide only one means of promoting creativity, while other, equally important mechanisms focus on securing adequate access rights for users. Put differently, the rights of authors (for incentives or just reward) and the rights of users to use creative works (e.g., read, learn, disseminate, re-use and transform) are different mechanisms for promoting copyright goals.

User rights: a global view

User rights were first explicitly recognized by the Supreme Court of Canada in 2004, in the landmark case of CCH Canadian Limited. v. Law Society of Upper Canada. This approach was recentlyreaffirmed in a series of copyright decisions. The Canadian Supreme Court, citing with approval Professor David Vaver, explained: “Users’ rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that benefits remedial legislation”.

In Israel, which only recently introduced fair use into the statute with the 2007 Copyright Act, the issue of user rights has already been tackled by the Israeli Supreme Court. Initially, in 2012 the Court explicitly rejected the position that fair use is a user right. The Football Association Premier League Ltd v Anonymous (2012) involved a petition to unmask the identity of an anonymous user who streamed infringing broadcasts of football matches owned by the English Premier League. Even though the petition was dismissed on procedural grounds, the Court held that streaming constituted copyright infringement and fair use did not apply. In rejecting the User Rights Approach the Court explained that fair use should be understood as simply a legal defense.

Soon after, in Telran Ltd. v Charlton Communications (2013), the Court questioned this approach. The case involved the legality of marketing decoding cards which enabled Israeli customers to decode the encoded broadcasts of the World Cup games, which were transmitted by foreign channels via satellites. The Court held that merely distributing the decoding cards did not amount to a copyright infringement, nor was it a contributory infringement, since simply watching copyrighted materials did not constitute copyright infringement. The Court explicitly rejected the fair use Defense Approach of the Premier League Court, noting that fair use is not merely a technical defense to copyright infringement but a permissible use. A few weeks later, in the case of Safecom v Raviv (2013), the Supreme Court reaffirmed this approach in a case addressing the copying of drawings of a functional electric device in a patent application submitted to the USPTO. The Court cited with agreement the user rights approach upheld in Telran and suggested that the time was ripe for holding an extended judicial panel on that matter.

These recent developments in Canada and Israel suggest that the legal status of fair use might have far-reaching consequences. Canadian copyright law includes fair dealing provisions, which are far more limited than fair use. Under fair dealing the use not only has to be proven fair, but must also fall under one of the strictly defined purposes enumerated by law. The Supreme Court of Canada held that since fair dealing was a user right “it must not be interpreted restrictively.” Accordingly, the Court broadly interpreted research, under fair dealing, as also covering sampling during consumer research, and private study as also including copying by teachers.

The Israeli adjudication on user rights suggests that simply introducing into the statute a fair use provision is not the final end of copyright reform. It is rather the beginning of an ongoing struggle to safeguard unlicensed use that is deemed necessary to the very creativity which copyright law is designed to foster.

Future challenges

One of the greatest challenges to access to knowledge in the 21st century is private ordering. Terms of use, restrictions by design and robust algorithmic enforcement threaten to wipe out many of the safeguards of access created by fair use.

The User Rights Approach to fair use could help set limits on private ordering. Under this approach, limits on fair use fall beyond the bundle of rights defined by copyright, and therefore cannot be unilaterally restricted by a license. A User Rights Approach to fair use may also affect the corresponding duties of content providers and online intermediaries, offering a legal framework for invalidating terms of use that unfairly restrict fair use and fundamental freedoms.

Overall, a User Rights Approach to fair use may offer more robust safeguards of users’ liberties in the digital ecosystem. Making fair use more universally adopted might be a good cause. But without strengthening the legal status of fair use, and developing a jurisprudence of fair use rights, we may end up fighting the battles of the past.

Niva Elkin-Koren is the founding director of the Haifa Center for Law & Technology (HCLT) and the former dean of the University of Haifa Faculty of Law. Her research focuses on the legal institutions that facilitate private and public control over the production and dissemination of knowledge. She is a co-founder of the Alliance of Israeli Institutions of Higher Education for Promoting Access to Scientific Materials which drafted a Code of Fair Use Best Practices for academic institutions in Israel. Her publications are listed here.


Fair Use Week 2015: Day Three with guest expert Laura Quilter

Fair Use : A Virtual Anthem of Empowerment and Joy for Librarians and Educators


The American Library Association recently passed an interpretation of its Code of Ethics to clear up confusions about the line that says librarians “respect intellectual property rights.” This phrase was taken by some to mean that librarians must respect the rights of copyright owners, or even police users on behalf of copyright owners.

Keith Aoki, James Boyle, and Jennifer Jenkins, 2006, Bound by Law?, p.59.  Available at http://web.law.duke.edu/cspd/comics/
Keith Aoki, James Boyle, and Jennifer Jenkins, 2006, Bound by Law?, p.59. Available at http://web.law.duke.edu/cspd/comics/


This was wrong. ALA’s new Copyright Interpretation clarified the line because copyright isn’t just a one-way street — it’s a carefully calibrated balance of rights of owners and users, intended to “promote the Progress of Science and useful Arts.” (US Constitution, Art. 1, s.8, cl.8.)

Unfortunately, we see the same error over and over again in copyright. Librarians try to do the right thing; try to follow what they have been told is “the law” — but it’s a law that ignores the other half of copyright law: users’ rights.

In fact, what some portray as a cautious or conservative[2] approach turns out to be a radical re-invention of copyright as an absolutist regime, unlike virtually any other legal regime.[3] We see the results of this misguided “conservatism” all too often, and it can lead to real error when this approach conflicts with the fundamental mission of an institution. My own university fell into this trap recently, when it interpreted a government statute to block admission of Iranian students to specific graduate programs. That this policy would pose a conflict with the University’s greater mission of promoting academic freedom and inquiry was, unfortunately, not noticed until after the policy was announced and met with widespread criticism, both within the University and without. Administrators belatedly recognized the mistake in the unduly cautious and conservative approach to that statute, and adjusted course.

Assessing any law solely through the lens of risk assessment can create such conflicts. A better understanding of the need to balance mission risk with legal risk could help avoid this problem altogether. As Brandon Butler and other colleagues[4] have noted, we simply cannot avoid all risk, if we hope to function at all. For example, any time you invite someone onto your property, you risk a slip-and-fall lawsuit. But a University must invite people onto its property in order to teach, conduct research, and simply operate. So we must, all the time, consider potential legal risk, but also mission risk — our duty to fulfill our own mission, and the risk of not fulfilling it if we act out of fear. In fact, whenever I teach law, I am careful to distinguish different levels of ethical and prudential assessment: the legal, the professional, the institutional, and the personal.

So here’s where I’m going to channel Sara Bareilles: I wanna see you be brave.


In copyright, we might be tempted to take an institutionally conservative approach. “Damages in copyright are potentially so large! Fair use is so confusing! It’s hard for ordinary people to understand! Our licensing librarian thinks fair use is risky! There are so many technicalities!”

Fair use is none of these things. Copyright law doesn’t just protect fair use — it charges librarians and educators with the responsibility to use it. So let’s clear away some FUD:[6]

  • MYTH: Fair use is too hard for people to understand. Better be safe and not use it, or get permission.[7]

    FACT: Fair use is founded on the simplest and most universal of concepts — fairness.  If you want to teach someone fair use, start with “fairness” — a concept that even primates and elementary school children grasp,[8] and the central concept that judges rely on in assessing fair use. Once you have a sense of whether the use is fair, go through the four factors to check your common sense assessment.

  • MYTH: Damages are too high and risky! Better be safe and not rely on fair use, or get permission.

    FACT: No they’re not! Well, yes they are — statutory damages are indeed potentially ruinous, but not for educators and librarians who are making good faith assessments of fair use. Section 504(c)(2) eliminates entirely statutory damages for reproductions made in good faith by librarians and educators.[9]And, frankly, the risk is low: Very few plaintiffs really want to bring expensive copyright litigation, especially against educators where their damages are limited by Section 504 or eliminated altogether by sovereign immunity. (And it doesn’t make the plaintiffs look good.) Most complainants will be willing to settle in such circumstances. So you can at least start by being brave, even if you quickly crumble!

  • MYTH: Fair use is too uncertain! The legal precedent doesn’t help us.

    FACT: This myth falsely suggests that the case law on fair use is negative. Actually, the case law is remarkably positive, and it’s especially heartening for transformative uses and for public purposes, like education and disability access. Courts have been strongly supportive of fair uses in recent years, recognizing that as copyright’s scope, term, and penalties grow, so too must user-protective doctrines like fair use.[10] The “Best Practices in Fair Use” project has helped empower users to feel confident about relying on fair use.[11] And flexible doctrines like fair use are influencing lawmakers around the world, and even being adopted outright in some countries.[12]

  • MYTH: Fair use excuses behavior that is unseemly or unethical. It’s more ethical to simply ask permission from the rights holder.

    FACT: Librarians and educators are not engaging in civil disobedience[13] when they rely on fair use, or even taking advantage of some kind of morally ambiguous “technicality” in law.  The Copyright Act encourages librarians and educators to rely on fair use. This choice is deliberate: Congress establishes statutory damages, fee shifting provisions (awarding attorney’s fees to the prevailing parties in copyright infringement), and safe harbors precisely in order to encourage and discourage certain behaviors. The sky high statutory damages in copyright law are not just a handout to rightsholder industries — they’re a signal that Congress wants rightsholders to aggressively enforce their own copyrights.

    Similarly, the numerous special protections for libraries and nonprofit educational institutions are a signal to us. We get special rights throughout the Copyright Act — Sections 107, 108, 109, 110 … heck, even our college radio stations get special discounted royalty rates.[14] Our uses are specially listed in Section 107 as examples of fair uses: “teaching (including multiple copies for fair use)”, “scholarship”, “research”, and listed again in the first factor (“nonprofit educational use”). And Section 504(c)(2) is a classic example of Congress immunizing a party from risk in order to encourage them to take full advantage of their statutory rights.

    What is this plethora of copyright goodness this telling us? By making good faith reliance on fair use virtually risk-free for educators and librarians, I’m pretty sure we’re being told: You can rely on fair use. Really. It’s okay. It’s there for you.

I have seen and appreciated this graphic for years, used by many educational institutions, but I have no idea who made it originally! If anyone knows, I’d love to hear from you.




Electronic Frontier Foundation educational campaign from 2006, “Fair Use Has a Posse”.
Electronic Frontier Foundation educational campaign from 2006, “Fair Use Has a Posse”.

The goal of copyright is “promote the Progress of Science and useful Arts.” Librarians and educators have special roles in the dissemination of information, so there’s good reason for our uses to be specially privileged in the copyright scheme. But librarians and educators don’t just have special rights under copyright and fair use — we have special obligations, too. Congress isn’t just giving away these special rights for free.

So what’s the catch? What’s the quo in this quid pro quo? The answer: We’re supposed to educate our users. In Section 108, the Higher Education Opportunity Act — over and over again we’re told to educate our users. Note that we’re not told to police our users, because we’re not in the best position to assess whether their uses are fair (and, because, intellectual freedom). But to educate them. So that’s our job. Education.


There you have it: It’s safe and easy to rely on fair use. It’s our job to teach about fair use, and it’s actually our statutory duty to rely on fair use. And, it’s our duty in the broadest sense of fulfilling our institutional missions, copyright’s general purpose, and librarianship’s embrace of intellectual freedom.

Really, there’s no reason not to be a fair use activist.



Fair use: It makes us all happy.[16]

“It might seem crazy, what I’m about to say
Fair use is here, it won’t go away.
Here come bad news, talking this and that.
Yeah, give me all you got; don’t hold back.
Yeah, well, I should probably warn you, I’ll be just fine.
Yeah, no offense to you, don’t waste your time.
Because I’m happy …”



Happy Fair Use Week, y’all.



Thanks to Charlotte Roh, Kyle Courtney, and Brandy Karl for editing and comment.

[1] Quoting from Sara Bareilles, “Brave” (2013).

[2] I mean “conservative” here in the sense of moderator or cautious, resistant to change; not politically conservative.

[3] Even property law, which is often depicted as being absolute, has numerous third-party protective doctrines. Kevin Smith wrote a helpful blogpost about this last year, “Why is copyright different?”, March 4, 2013..

[4] My apologies — I can’t remember who I first heard make this very helpful analogy!

[5] Transforming “I’m all about that bass, no treble”, from Meghan Trainor, “All About That Bass” (2014).

[6] “FUD” is “fear, uncertainty, and doubt.”

[7] Rightsholders have lately taken to concern trolling librarians and educators in copyright hearings on Capitol Hill: “Fair use is so difficult for librarians. We can set up a nice licensing scheme where they pay us and don’t have to worry their little heads about fair use.” (My paraphrase)

[8] Yes, even primates! See Sean Markey, “Monkeys Show Sense of Fairness, Study Says,” National Geographic News, Sept. 17, 2003. If a million monkeys typed on computers, would they ever come up with something as crazy as 17 USC 112? As for elementary age children — my 6-year-old’s arguments about fairness ring in my ears every day.

[9]17 USC 504(c)(2)

The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:

(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords[.]

[10] See Pat Aufderheide and Peter Jaszi, 2011, Reclaiming Fair Use: How to Put Balance Back in Copyright.

[11] American University, Center for Media & Social Impact, “Best Practices in Fair Use”.

[12] Jonathan Band and Jonathan Gerafi, 2013, “The Fair Use / Fair Dealing Handbook”. The Jonathans surveyed the international landscape for fair use and similarly flexible approaches to copyright exceptions in 2013.

[13] Jim Neal, “Fair Use Is Not Civil Disobedience: Rethinking the Copyright Wars and the Role of the Academic Library”, ACRL 2011.

[14]17 USC 118, “Use of certain works in connection with noncommercial broadcasting”. See the Copyright Royalty Board for the current 2012-2015 rates for college radio, and for the proceedings for upcoming rates. http://www.loc.gov/crb/

[15] Transforming lyrics from “Stay With Me”, from Sam Smith (2014).

[16] Minor transformation of Pharrell Williams, “Happy” (2014).

Laura Quilter is the Copyright and Information Policy Librarian at the University of Massachusetts, Amherst, Libraries.  Laura has a M.S. in Library and Information Science (University of Kentucky, 1993) and a J.D. (UC Berkeley School of Law, 2003).  She has taught as an adjunct professor at Simmons College, and at the Samuelson Law, Technology and Public Policy Clinic at the UC Berkeley School of Law.  She has consulted with libraries and non-profits on copyright, privacy, and other technology law concerns.  She has also worked as a librarian and assistant professor at the University of Illinois at Chicago, and has lectured and taught courses to a wide variety of audiences. Laura’s research interests include copyright, tensions within teaching and scholarly communication, and more broadly, human rights concerns within information law and policy, including privacy, access to knowledge, and intellectual freedom.

Fair Use Week 2015: Day Two with guest expert Kevin Smith

For our second entry this week, we are excited to feature Kevin Smith, Director of Copyright and Scholarly Communication in the Office of Copyright and Scholarly Communication at Duke University.


What Does Fair Use Taste Like?


Will Cross, a colleague from the NCSU Libraries who teaches a graduate course on legal issues with me, frequently refers to the analogy for fair use that he learned as a law student at the University of North Carolina from the legendary Laura Gasaway – fair use is like soup. It sounds strange, doesn’t it? How could such an abstract and contested legal concept be anything like a warm and comforting bowl of soup? But there is real brilliance in this analogy.

One of the difficult things about explaining fair use is convincing people that it is a balancing test. It is not a checklist, where each factor must add up on the same side of the ledger to either confirm or exclude fair use. It is perhaps the least mechanical, the least “bright line” rule found in our law. And yet it works. And it works because it is like soup.

When an experienced chef is making soup, there are certainly things she has learned that do not change – 5 cups of broth for a pound of meat, sauté the onion first, add a small handful of oregano. But a lot of the process of putting those ingredients together is instinctual, if you will, or learned from experience. Add the salt and taste. Too much? A little more broth will balance it out. In short, making soup means taking the known ingredients, blending them together, and seeing if it tastes right.

With fair use we have a statutory list of four factors. They really tell us what the important facts are: where we should look, when evaluating a particular use, for the ingredients that go into the fair use soup. When we have gathered our ingredients – all the circumstances that describe the purpose of the use, the nature of the original, the amount used, and the impact on the market for the original – we are to look at the whole picture and decide if it looks fair. According to the Supreme Court in Campbell v. Acuff Rose, the factors are “explored and weighed together, in light of copyright’s purpose.” Does the soup taste right? If not, there are adjustments the user can make – a little less on the amount, a bit more of transformation (i.e. critical commentary). The goal is to get to the place where all the ingredients (the specific circumstances) blend together and the soup tastes like fair use. If this sounds subjective and uncertain, it is. But the analogy reminds us that we deal with uncertain judgments all the time, and experience teaches us to exercise good judgment, when we cook and when we assess fair use.

I have belabored this analogy because I find it so useful when thinking about fair use decisions. Consider the decision from the 7th Circuit Court of Appeal in Kienitz v. Sconnie Nation. That case involved a pretty straightforward transformative fair use issue, but it just did not taste right to the judge who wrote the ruling. The crux of the matter was that the mayor of Madison, Wisconsin wanted to stop a famous and irreverent block party that has been going on for years, and at which the mayor himself was apparently a reveler when he was a UW student. A local printing company printed t-shirts that lampooned the mayor for his change of heart, using a photograph of the mayor taken by Mr. Kienitz with the motto “Sorry for Partying” superimposed. The photo (it was, of course, the photographer who sued) was substantially altered for the image on the t-shirt, although the printer readily acknowledge that he had used the picture.

In finding that this was a fair use – a result dictated by lots of precedents – Judge Frank Easterbrook takes an odd approach. The key ingredient in this case, one would think, would be transformation. But Judge Easterbrook apparently dislikes transformation in the fair use soup (I feel the same way about okra). So although he acknowledges that the Supreme Court “mentions” the role of transformation, he dismisses it as a question for the case before him. In the process he also questions the well-known Bill Graham Archive v. Dorling Kindersley case from the 2nd Circuit, even though both cases seem right on point for Kienitz. Judge Easterbrook is just determined to not have transformation in his fair use soup, no matter how much the facts force that ingredient on him. Instead he hangs the bulk of his finding on two of the fair use factors – amount used and impact on the market – and dismisses the other two – purpose of the use and nature of the original – because they “don’t do much in this case.” This is a remarkable statement, since purpose of the use is often considered the most important factor (within the analysis of transformation), and the nature of the original (a portrait photograph) really is relevant in this controversy. But they are not ingredients that Judge Easterbrook can stomach, so he leaves them out of his soup.

The reason I find this case remarkable is, first, because Judge Easterbrook gets to the right result through very poor reasoning (see reactions to the decision here and here). But also because it illustrates the soup-like flexibility of fair use. If one ingredient in the analysis in not to the taste of a judge, he or she can try something different. There are lots of ways to find fair use, and lots of paths open to those who would practice it. That is the beauty of a balancing test, whether tasting the soup to see if it is good or balancing the factors to see if a use is fair. When users are contemplating a use, they can adjust the facts – the ingredients – until the balance seems right.

Of course, in many cases fair use claims are unquestionably palatable. The late Judge Baer, in his decision in Authors Guild v. HathiTrust, clearly enjoyed the taste of Hathi’s fair use claim when he wrote “I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants…” That decision was largely upheld by the Second Circuit Court of Appeals, the same Circuit whose taste in fair use Judge Easterbrook questions in his Kienitz decision.

All this raises a troubling question. Is fair use really just a matter of taste? Is a balancing test really as subjective as the soup analogy suggests? I think the answer is that it is not. For one thing, it is worth noting that Judge Easterbrook does not really jettison the question of transformativeness, in spite of the language of his opinion. Rather, he slips transformation into his soup in an unusual way, through the fourth fair use factor. When he finds that the t-shirts are “no substitute for the original photograph,” he is really saying that the original has been transformed in a way that serves a new purpose and creates a new meaning. He may not like the taste of the transformation analysis, but he cannot, and does not, wholly exclude it from his recipe. I think this illustrates an important general point about fair use. The factors are pointers that direct us to examine specific facts related to the proposed use. So we know what the ingredients are. And we balance those ingredients to achieve a specific “taste” – a use that serves rather than undermines the constitutionally-stated purpose of copyright. So we know the list of ingredients that go into fair use, and we know the overall “flavor” we are seeking. With those parameters in mind, we all have the opportunity to cook up a tasty batch of fair use soup.

Kevin Smith is Director of the Office of Copyright and Scholarly Communications and is both a librarian and an attorney experienced in copyright and technology law. He also serves as a nationally recognized resource on local and national policy in order to help the Duke community stay informed and involved with the changing landscape of scholarly publication. You can read his regular blog here.  His latest book is Owning and Using Scholarship: An IP Handbook for Teachers and Researchers (2014).