Fair Use Week 2019: Day Five With Guest Expert David R. Hansen and Kyle K. Courtney

Fair Use, Innovation, and Controlled Digital Lending

by Kyle K. Courtney and David R. Hansen

One of the beautiful things about fair use is how it can soften the copyright act, which is in many ways highly structured and rigid, to provide flexibility for new, innovative technology.

To understand how, it’s worth appreciating the structure of the Copyright Act. If you look at the table of contents of Chapter 1 of the Act (“Subject Matter and Scope of Copyright”), you see the first several sections define basic terms such as copyrightable subject matter. Included in that first half of the chapter is Section 106, which defines the exclusive rights held by rights holders: the right to control copying, the creation of derivative works, public distribution, public performance, and display.  In the bottom half of the Act, Sections 108 to 122 provide for a wide variety of limitations and exceptions to those owners’ exclusive rights. These exceptions are largely for the benefit of users and the public, including specific exceptions to help libraries, teachers, blind and print-disabled users, non-commercial broadcast TV stations, and so on.

Then, there’s fair use. As if perfectly positioned to balance between the broad set of rights granted to owners and the specific limitations for the benefit of users and the public, “fair use” is codified in Section 107, though it really isn’t a creature of statute. Fair use is a doctrine, developed by courts as an  “equitable rule of reason” that requires courts to “avoid rigid application of the Copyright Statute when on occasion it would stifle the very creativity which that law was designed to foster.” In that role, fair use has facilitated all sorts of technological innovations that Congress never could have anticipated, allowing copyrighted works and new technology to work together in harmony.

One particularly innovative system developed to enhance access to works is “controlled digital lending” (“CDL”):

CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation….[I]t could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.

While the courts have yet to weigh in directly on the CDL concept, we now have some guidance from a case in the Second Circuit Court of Appeals, Capitol Records, LLC v. ReDigi Inc. This case is about the development of an online marketplace created by ReDigi, which facilitated the sale of “used” mp3 music files. Capitol Records sued ReDigi, alleging that ReDigi infringed its exclusive rights to reproduction and distribution when it attempted to use a particular transfer method to sell the used mp3s.

The Court of Appeals upheld a lower court ruling that the doctrine of first sale is only an exception to the public distribution right and, therefore, does not protect digital lending because, in that process, new copies of a work are always made.

The court also rejected ReDigi’s fair use assertion. It found that the use was commercial in nature, was considered non-transformative, and replicated works exactly and precisely; simply put, they created mirror image copies of existing digital files.  Further, though the libraries associations in their briefs had raised the issue of a nexus of connection between fair use and specific copyright exceptions, such as Section 109 and 108, as an extension of Congressional policy that should influence the fair use analysis, the court did not discuss that argument.

That the court ruled ReDigi, a commercial enterprise, had interfered with the market for iTunes-licensed mp3s and their effort was not a transformative fair use, comes as no surprise to most lawyers and copyright scholars.

However, the decision, written by the creator of the modern transformative fair use doctrine, Judge Pierre Laval, contains several important lessons for CDL.

Transformative Use

First, the case raises a significant question as to whether CDL of digitized books may be “transformative” in nature. In the decision, examining the first factor, Judge Leval explains that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” For physical books, especially those that are difficult to obtain, this application of “transformative use” has a direct correlation to the core application of CDL.

Further, this quote interprets another critical technology and fair use case from the U.S. Supreme Court, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), famously called the “Betamax case.” Since its decision in 1984, the Sony ruling helped establish and foster the creation of new and vital technology, from personal computers and iPods to sampling machines and TiVo. This Sony quote was most recently used in another Second Circuit case, Fox News Network, LLC v. TVEyes, , where the same court laid out this particular reading of Sony. So, ReDigi here is drawing upon the precedent of two important transformative fair use cases to make its point. Under this transformative use definition, CDL should be determined to be transformative by the courts, especially if the commercial rights of the rights holder are not unreasonably encroached.

Therefore, while the court found ReDigi’s use to not be transformative, the Second Circuit opened the door for continued technological development, especially for non-commercial transformative uses under the first factor, like CDL. In fact, according to several scholars (Michelle Wu, Kevin Smith, Aaron Perzanowski), this creates a much stronger argument that CDL would be ruled a transformative fair use by a court.

Market Harm

The Second Circuit held that the ReDigi system caused market harm under the fourth factor of the fair use statute. Again, this is not a surprise to the copyright world. The court found that the service provider had no actual control of the objects being sold and that it “made reproductions of Plaintiffs’ works for the purpose of resale in competition with the Plaintiffs’ market for the sale of their sound recordings.”

What does this mean for CDL’s analysis under the fourth factor? Here, again, based on the language of the ReDigi decision, CDL looks pretty different. The ReDigi resales were exact, bit-for-bit replicas of the original sold in direct competition with “new” mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the operative market experiencing harm. For digitized copies of print books used for CDL, the substitutionary effect is far less clear. With most 20th-century books—the books that we feel are the best candidates for CDL—the market to date has been exclusively print. For those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

CDL doesn’t compete with a recognized market. When a library legally acquires an item, it has the right, under the first sale doctrine, to continue to use that work unimpeded by any further permission or fees of the copyright holder. CDL’s digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a “market harm,” it’s one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The CDL “own-to-loan ratio” ensures that the market harm for the digital is the exact same as circulating the original item.

Again, the language of the ReDigi court should be examined closely. The court distinguishes substitutionary markets from those that are complementary and natural extensions of the use inherent with purchasing the original: “to the extent a reproduction was made solely for cloud storage of the user’s music on ReDigi’s server, and not to facilitate resale, the reproduction would likely be fair use just as the copying at issue in Sony was fair use.” Reading this language through the lens of CDL, a modern reproduction service, such as CDL, that further enhances the owner’s use of materials that were purchased under first sale or owned under other authorized means would also qualify as a fair use.

All in all, the ReDigi case most certainly does not settle the CDL issue; if anything, the specific language of the court emphasizes the potential for more non-commercial transformative uses like CDL.

David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.

Kyle K. Courtney is Copyright Advisor and Program Manager at Harvard Library’s Office for Scholarly Communication (OSC). Before joining the OSC, Kyle managed the Faculty Research And Scholarly Support Services department at Harvard Law School Library.

Fair Use Week 2019: Day Three With Guest Expert Dr. Nora Slonimsky

The Public Figure Exception(s): Finding Fair Use in the Vastness of Early American IP

Originally published on Uncommon Sense, a publication of the Omohundro Institute. This post accompanies “Copyright and Fair Use in Early America,” episode 227 of Ben Franklin’s World. You can find supplementary materials for the episode on the OI Reader app, available through iTunes or Google Play.

by Nora Slonimsky

Whether you are Gigi Hadid or Jedidiah Morse, your copyright is often more than just a proprietary claim. Public figures have long been bound together in the public eye with perception and re-use of their works, whether people share photographs of you walking down the street or a map produced more than two hundred years before GPS. In an era of Twitter, paparazzi, and a rapidly turning over news cycle, deciding what information the public needs to make informed decisions is an increasingly fraught challenge—but not a new one. As early national writers sought to shape American media in the wake of independence, they confronted what it meant to be a public figure and what value that role had in the creation of new forms of expression.

A legal doctrine highlighted this week through collaboration among libraries, institutions of higher education, and professional research organizations, fair use emerged as a formalized legal framework in the nineteenth century with infamous competing biographies of George Washington and the 1841 case of Folsom v. Marsh, as Kyle K. Courtney and Liz Covart discuss in the #FairUseWeek episode of Ben Franklin’s World. The concept is intended to protect the right to circulate information that would otherwise be covered by copyright.

Fair use doctrine intersects with similar principles around the globe, but several of its particular qualities were formulated in the United States and have roots that date to the beginning of the nation’s history. One root involves a proposed aspect of fair use called the “public figure exception.” As described in the 1985 case of Harper & Row v. The Nation, the public figure exception limits an author’s or proprietor’s right to be paid for their expression when the work contains “matters of high public concern.”[i] A work “containing matters of high public concern” can often be intertwined with the public role of the author. As a consequence, the public figure exception introduces the reputation or image of the author as a consideration in the balance between the individual claims of artists and innovators over their creative labor and the broad social need for the learning and engagement that comes from expression.

Turning to early America can provide a deeper understanding of why. When the phrase “public figure exception” appears today, it is frequently in the context of defamation. In my first book project, I look closely at the relationship between libel and copyright, and how they function in the construction authorial, as well as state, authority. To write and publish a criticism of a public figure was still considered seditious libel in the late eighteenth century. The logic that something could not be libelous if it wasn’t true was not formalized in United States law until 1805, and even then, was determined by state, and not federal, law.[ii] The truth defense evolved over the next century and a half, but in the early national period, the standing of a writer – through their racial, religious, ethnic or gender identity, political affiliation, wealth, education, networks, regional ties – determined the authenticity of their expression alongside any innovative qualities.

It is more Jedidiah Morse than Gigi Hadid then who ties together these complex threads of copyright, fair use, libel, and public opinion. Although media in the late eighteenth century was indeed very social, the media were quite different. Morse might not have been the most adept at the eighteenth-century equivalents of Twitter, like pamphlets and broadsides, but he was extremely skilled at social networking. For the “father of American geography,” Morse shrewdly marketed his nationalistic series of geography books, from 1784’s Geography Made Easy to the 1789 The American Geography to The American Universal Geography, which appeared in several editions in the 1790s and early 1800s. As a strong supporter of the Federalist coalition who consistently cultivated an image of expertise in topography, environmental science, history, and political commentary, Morse was extremely close with other leading figures in the knowledge industry like Noah Webster and employed Alexander Hamilton and James Kent as his copyright lawyers in what would be the first known federal copyright case, Morse v. Reid, in 1798.

Despite, or perhaps because he was such a staunch advocate for copyright, Morse relied heavily on what we would now consider fair use. Writing that he often “aimed at utility rather than originality, and of course, when he has met with publications suited to his purpose, has made free use of them,” Morse added, without irony, that he “frequently used the words as well as the ideas of [other] writers” without telling the reader.[iii] Morse did not see any issue with compiling the work of other writers and using it in his own. Morse conducted his own research and wrote much of The American Geography on his own, but to bolster his credibility, “maintained extensive correspondence with men of Science,” and “in every instance, has endeavored to derive his information from the most authentic sources.”[iv] In other words, he relied on the expertise of others, and in turn, shared their findings while expanding his own. So if one of these experts in turn relied upon Morse’s work for their own, it does not appear that he had much of a problem with it.

Where Morse did have a problem, however, was when someone whom Morse did not deem a valid authority did so. Even worse, when the “pirate” in question was a Baptist minister held in Newgate Prison for sermons in favor of the French Revolution, the Congregationalist, pro-British Morse was aghast. William Winterbotham was in reputation everything Morse feared. He published An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies in London in 1795; it was reprinted in New York in 1796.

Only then did Morse have any legal recourse, as international copyright did not exist. Alerted to Winterbotham’s book by Morse’s London publisher, John Stockdale, Morse immediately recruited Hamilton as his attorney, writing that “After going over the Work with care & a great deal of labour, I have estimated that nearly a third part of the whole of Winterbothams work, has been copied verbatim from my work, or about 600 pages out of about 2000.”[v] By current fair use standards, this was a high percentage, but what seemed to truly incense Morse was not the quantity, but rather how Winterbotham had “artfully, in many instances … transposed paragraphs & sentences, apparently with a view to deceive the reader.”[vi] It was evident, according to Morse and his legal team, that Winterbotham had copied more of Morse’s work than was appropriate to demonstrate expertise or “authentic sources.” As you can see in the images to the left, while maps were not a source of dispute for Morse, there was clear reliance on The American Geography (top) in the New York edition of An Historical, Geographical, Commercial and Philosophical View of the United States of America and of the European Settlements in the West Indies made by John Reid (bottom).

Winterbotham did not criticize Morse. In fact, when Winterbotham mentioned him at all, it was to praise his status as a geographer and writer. Still, because of Winterbotham’s politics and precarious position, Morse remained worried about his authority as a public figure. This was both a commercial and credit-based fear. If readers began to associate Morse and The American Geography series with the work of Winterbotham, it could encroach on Morse’s market share, but also influence American readers about Morse’s message and his political standing within the Federalist network. Winterbotham’s piracy, whether rational or irrational, reasonable or unreasonable, functioned to Morse like a libel.

Whether the people involved are presidents like George Washington or Gerald Ford, or well-known authors like Morse, the public figure exception is based on an understanding of fair use in which the public need for the expression contained within a writer’s work is pivotal to making informed choices. If the author is an authority in a given subject, especially one that has obvious relevance for pressing issues, financial barriers to that material can have drastic consequences. And yet writers, like all workers, need to make a living. Writing nearly two hundred years before Harper & Row v. The Nation, and fifty years before Folsom v. Marsh, Morse was not articulating clear legal doctrine by any means, but rather musing on exceptions to exceptions. The copyright consciousness in which Morse wrote and published was one in which he could both reap the benefits of fair use and complain of piracy at the same time, in large part because both relied upon his carefully crafted public persona as a geographic expert. When looking at media, authority, and access through the lens of fair use, the early history of copyright is thus as much about public opinion as it is property.

Nora Slonimsky works on the history of copyright and its relationship with media regulation, state formation, and knowledge production in the long eighteenth century. Dr. Slonimsky is the Gardiner Assistant Professor of History at Iona College and Director of the Institute for Thomas Paine Studies (ITPS). This post also appears at the Copyright At Harvard Library blog.

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[i] Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985): 3.

[ii] This was in the case of People v. Croswell (1804), in which Alexander Hamilton argued the truth defense. It was written into law by New York State the following year.

[iii] Jedidiah Morse, The American Geography; Or, A View of the Present Situation of the United States of America Containing – Astronomical Geography, Geographical Definitions, Discovery, and General Descriptions of America and the United States – of their Boundaries, Mountains, Lakes, Bays and Rivers, Natural History, Production, Population, Government, Agriculture, Commerce, Manufactures, and History –a Concise Account of the War, and of the Important Events with have Succeeded with a Particular Description of Kentucky, the Western Territory and Vermont – of their Extent, Civil Divisions, Chief Towns, Climates, Soils, Terrain, Character, Constitutional, Courts of Justice, Colleges, Academies, Religion, Islands, Indian, Literary and Humane Societies, Springs, Curiosities, Histories &c to Which is Added an Abridgement of the Geography of British, Spanish, French and Dutch Dominions in America and the West Indies – of Europe, Asia and Africa Illustrated with Two Sheet Maps – One of the Southern, the Other of the Northern States – From the Latest surveyors. Shepard Kollock: Elizabeth, New Jersey, 1789: vi-vii.

[iv] Morse, The American Geography, iv.

[v] Jedidiah Morse, “Letter from Jedidiah Morse to James Kent, January 21st, 1796,” Box Two, Morse Family Papers, Sterling Memorial Library, Yale University.

[vi] Morse, “Letter from Jedidiah Morse to James Kent.”

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

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Malcolm Turnbull, Copyright Law Reform, And The Innovation Agenda

by Matthew Rimmer

rimmer1

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

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.

Conclusion

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 Two With Guest Expert Krista Cox

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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.

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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

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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 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.

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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 ONE WITH GUEST EXPERT KENNETH D. CREWS

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Welcome to the 2nd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  This entire week we will be celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panel on Thursday, February 26th.

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.  

 

“Copyright, Fair Use, and a Touch of Aristotle”

 

Ponder this overlooked principle of copyright:  Fair use abhors a vacuum.

Commentary and events about fair use justly abound, but fair use does not exist in isolation.  It is not compressed into one celebrated week.  It never stands alone.  And it is integral to the functioning of copyright law.  Fair use responds to changing demands, and by its nature fair use is pulled into the deep uncertainty brought on by expanding innovation.

Start with copyright’s basic premise.  Copyright is fundamentally a system of legal rights, granted initially to authors, authorizing control of certain uses of creative works.  The basic legal rights are familiar.  Copyright owners have rights of reproduction and distribution of copies; rights to make derivatives or adaptions; and rights to make public displays and performances.  For some works, moral rights also apply.

The rights of copyright owners are far from absolute.  They are subject to a variety of conditions and limitations, starting with the fact that copyrights expire, allowing works to enter the public domain.  Copyrights may last for many decades, but the eventual expiration of copyrights is essential to the central purpose of the law: To encourage creativity.  By granting rights, the law encourages authors to create new works.  By assuring a public domain, the law boosts the next generation of creative ventures.

Copyrights are also limited by a long list of statutory exceptions.  The public domain is broad, but it can be far in the future.  By contrast, exceptions apply from the outset of the copyright, but they are of narrow scope.  Fair use is one such exception.  Fair use permits all of us to make uses of copyrighted works, but only within the framework of the four factors in the statute.  The meaning of the factors is wide open to debate, but they ultimately set parameters on the amount, purpose, and other conditions for proper use.

What about that vacuum, you ask?  Already we can see two ways that fair use and vacuums don’t jibe.  First, fair use does not live alone.  It is one of many statutory exceptions.  The U.S. Copyright Act has exceptions for teaching, libraries, services for the blind, music recordings, satellite transmissions, and more.  Indeed, a proper evaluation of fair use often means looking first for a specific statute that might meet your needs.

Fair use is also not in a vacuum for a more conceptual reason.  Fair use may be about public rights, but its significance derives from private rights.  The law grants private rights to authors for the benefit of private parties, but also for a public benefit.  All members of the public benefit if we are motivated to craft new artworks, formulate new software, compose new music, or roll out imaginative novels and movies.  At the same time, many of these new works build upon previous copyrights.  By allowing fair use of works that came before, and of our new works, the law is sanctioning the building block of further aesthetics, storytelling, computer innovations, and even parody.   Fair use is an essential complement to the rights of owners, and it completes the circle of creative incentives.

Finally, fair use abhors a vacuum as a byproduct of its inherent versatility.  Fair use is the go-to statute for creative exploits.  Congress deliberately devised a fair-use law that could apply to all media, all types of works, and all innovative pursuits.  It clearly establish limits on amount, purpose, and other conditions, but fair use at least allows some degree of use as we experiment with unanticipated technologies, formats, and objectives.

Only recently have courts told us that fair use allows low-resolution images in a study of music history, or permits storage of digital books for research indexing and access for the blind.  Courts have resolved that posting videos on YouTube for public criticism may be allowed.   Using a politician’s photograph for political commentary can be fair use, and so can the use of video clips from commercial broadcasters, especially when the selections are limited and the purpose is to facilitate political and social critiques.

As the media and substance of creativity expands, so does the reach of fair use.  The outer boundaries of technology are accelerating swiftly away from copyright’s familiar home.  As innovation open up vast areas of untested space, so will fair use be absorbed into the new realm.  The new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.  Without fair use we would have no troves of digitized research collections from Universities, and we would be denied the biting insights that pour forth from South Park or The Daily Show.

The human drive for innovation will always grasp new opportunities that emerge with technological expansion.  Because fair use is flexible, it is able to be drawn into the vacuum of that new space.  Because fair use is integral to copyright in general, when it melds into the vastness of innovation it also helps protect rights, encourage authors, and promote the progress of public and private interests.

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Kenneth D. Crews is an attorney with Gipson Hoffman & Pancione in Los Angeles.  He founded the first copyright center at any university, based at Indiana University.  He also established the copyright center at Columbia University and continues to serve on the faculty of Columbia Law School and the Munich Intellectual Property Center.  He is the author of Copyright Law for Librarians & Educators: Creative Strategies & Practical Solutions (3rd ed., 2012).