Recently, I noticed a glaringly incorrect interpretation of the Fair Use exception to the protections offered holders of copyrights. It came in a website warning that attempts to deny the benefits of Fair Use to the public whenever an article is copyrighted. Section 107 of the Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Sec. 106 specifically states that copyrights are granted subject to the limitations in Section 107. Although the exact contours of the Fair Use exception cannot be described, certain uses that are appropriate in scope and intent are clearly permitted. [update (Oct. 24, 2006): Prof. Eugene Volokh, an expert in free speech and copyright law, weighed in on this issue yesterday, and you can find an interesting string of comments at his Volokh Conspiracy weblog. From London, PhDiva also offered an interesting perspective. And, this issue is covered this morning by BoingBoing. Thanks to Eugene, Dorothy and Cory for helping the public better understand Fair Use rights and responsibilies.]The e-publication that caught my eye proclaims at the foot of each article (even when it copies someone else‘s press release verbatim without attribution) that no reproduction of any sort is allowed because the “This article is copyright protected and Fair Use is not applicable.” The site’s SideBar has a similar warning against any reproduction “in accordance with Fair Use of copyright.” This overreaching is especially perturbing to me, because the e-newspaper prides itself on fighting for “legal reform” and against government abuses using investigatory reports, and good information and clear analysis.It worries me that free speech and the public’s interests in the exchange of ideas and information might be harmed by such misinformation. The Wikipedia treatment of Fair Use on the Internet has a list of Common Misunderstandings and the first entry is: “It’s copyrighted, so it can’t be fair use. Fair use describes conditions under which copyrighted material may be used without permission.”So, whether you are a weblogger who wants to write about a copyrighted work (or who just received a cease and desist demand), a copyright holder seeking protection, or a citizen who wants to stay abreast of an interesting issue that comes up more and more in our digital world, you should know that there are a lot of useful, free sources of information on the web. In fact, there are so many that we can only try to highlight some that seem particularly helpful.Three of the most comprehensive resources dealing with the topic of Fair Use are the Stanford University Copyright & Fair Use Center, the Fair Use Network (sponsored by the Brennan Center for Justice at the NYU Law School), and Electronic Frontier Foundation with its EFF Legal Guide for Bloggers. You can find less comprehensive information at the U.S. Copyright Office site. The Stanford website offers information on all aspects of fair use — from basics to specialized issues, to legislative activity, to caselaw, to lists of relevant website and articles.Here are some specific articles and webpages that may fit your needs:
— The Chilling Effects Clearinghouse has an excellent set of Frequently Asked Questions about Copyright and Fair Use, with a nice summary of the four statutory factors. The FAQ answers the question Do I need permission from the copyright holder to make fair use? like this: “No. If your use is fair, it is not an infringement of copyright — even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).” When at Chilling Effects, you might also want to check out Betsy Rosenblatt’s Copyright Basics.
— Kimberlee Weatherall (an academic Australian IP expert) and famed weblogging law professor Eugene Volokh offer14 Copyright Tips for Bloggers, which looks at the issues from the perspective of both the copyright holder and the prospective Fair User.
— Mary E. Carter’s eFuse article When Copying Is Okay is also a very useful document. As for the kind of copyright notice to use on your website, she advises: “Placing your copyright notice on your Web site is a start to protecting your copyrights on-line. Read some of the copyright notices on the Web sites of newspapers and other mainstream content providers for inspiration on how to word your notice. I generally recommend the simpler-is-better approach. Just place the “circle c” ©, or even just (C), and your name and the year of execution on the first page of your site and leave it at that.”
— — Nolo.com has a basic discussion on the Fair Use rule (annoyingly spread over 4 pages). [Note: In a lengthy monograph, I disagree with its notion that a haiku poem is too small to every be quoted under Fair Use].Admittedly, it is not always easy to know with certainty whether some assertions of the Fair Use exemption are appropriate. Nonetheless, the Fair Use Network correctly says that “Despite this unpredictability, it is important to assert fair use, and reject assumptions that all uses must be licensed and paid for.” And, Marjorie Heins put it well in the Online Journal Review (Feb. 23, 2006, via Ambrogi’s Media Law): “To the extent that fair use is not used, it will shrink, and to the extent that it is used and asserted, it will remain healthy and even grow.” Perhaps, the courts or legislature should explicitly decide, as suggested by Judge Posner at Lessig Blog in Fair Use and Misuse, that excessive claims to copyright protection through the denial of Fair Use rights amount to copyright abuse that forfeits the law’s protections until remedied.
p.s. My own attempt, by email, to suggest to the offending editor the error of her ways (by quoting the statute and referring her to two resources), resulted in an angry rebuff, in which I was accused of practicing law without a license [actually, I’m a retired member of the NY and DC Bars], told that my email would therefore be forwarded to the Attorney General and the paper’s lawyer (who it was implied had okayed their statement denying Fair Use rights), and threatened with hearing from said lawyer, should I take any of their materials. [She also sent two additional emails with the following messages: “you’re an ass and not worth bothering with” and “Watch NCG—you’re going to have some publicity too.”] I agree with this assessment of the damage the incorrect statement of the Fair Use doctrine does to the newspaper’s credibility when it analyzes other issues. I’m not explicitly naming the publication in this posting, because I’d rather not give it direct publicity. [updates: (October, 25, 2006): One post today describes the [short-lived] improvements in NCG’s copyright warning and one even more threats aimed at shlep‘s Editor by June Maxam, the Editor of the publication in question. Also, Prof. Volokh continues to explore the credibility issue, along with many commentors. (October 26, 2006): Maxam has re-inserted “Fair Use is Not Applicable” in her warning; see our post. But, see our Nov. 22, 2006 post, “Maxam’s Gazette Removes Fair Use Disclaimer“]
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