Summary
of the Status of Fair Use Rights. Fair use, or the "right" to trump copyright laws for certain beneficial and culturally necessary purposes, is a concept that resides almost uniquely in US copyright law. The US Fair Use statute (section 107) is based on the constitutionally defined requirement that the purpose of copyright is to encourage the development of the sciences and the arts. To achieve that laudable end, creators are rewarded with the limited monopoly we call copyright. But, it also follows that for the sake of promoting this national interest, creator rights must not be absolute; these protections must be sufficiently pliable to safeguard free speech, promote education and encourage commentary and discourse. User rights, rights presumably contrary to the interests of copyright holders, are vouchsafed by defining criteria for "fair use." -- in counterpoint to balance potential rights of users against those of creators. As far as I am aware, there is no international equivalent to the US concept of Fair Use. Instead, European "fair dealing" principles are more limited -- providing that individuals, for their private purposes, may copy copyrighted works. As Siva Vaidhyanathan [1] has argued, our conflicts about the use of "intellectual property" tend to be defined and ruled by the language and metaphors we invoke to describe it. What we call intellectual "property," is not property at all, he says, at least not in the Boolean sense by which property is possessed uniquely by either one party or by another. Rather, as many have asserted, this kind of property is nothing but a bundle of "rights" awarded, rescinded or ignored by government for a variety of national and socially beneficial purposes. The use of the word "theft" by the copyright culture as a metaphor with which to characterize unlicensed uses of intellectual property has colored our notions of Fair Use and has placed would-be fair users at a strategic disadvantage when pressing for preservation of their rights. Indeed, copyright "infringement" is much closer to our notions of "trespass" -- temporary unauthorized access -- than it is to "theft." Arguably, there are several impediments and disincentives to the application of Fair Use in the US, which, when taken as a whole, creates an atmosphere that is prejudicially in favor of copyright holders at the expense of the just needs of society. This writer agrees with many; in such an environment, the constitutionally mandated balance between the rights of creators and users is being upturned by intimidation, by new legislation and by certain technical potentialities of our digital society. The first of these impediments concerns the way Fair Use is defined in US law. Strictly, it is not a right, per se, but, rather, an affirmative defense to a charge of copyright infringement. The consequences of this structure are grave, for, while it gives de facto license to occasional and non-systematic users of intellectual property by virtue of what copyright attorneys call "market failure" -- the inability or lack of will to pursue every unlicensed use of intellectual property -- it gives serious pause to institutions and businesses whose potential fair uses of intellectual properties might well survive infringement suits. Schools, scholars, educators, publishers and vendors of educational products are fearful to claim fair use, lest they be found culpable in court. Indeed, counsel for educational institutions around the country have forbidden continuation of the traditional practice of art history and other departments to collect unlicensed copies of images for use in slide-rooms and other repositories made for teaching and research. Professional organizations are understandably wary of lobbying for a strong and unambiguous Fair Use language because their constituencies belong to both creator and user classes. Efforts to create "fair use guidelines," such as was the aim of the unsuccessful Conference on Fair Use (CONFU), to which both users and IP holders contributed, have produced documents that so strictly limit the level of approved uses as to traduce the intention of the fair use statute. When (or if) approved by user groups, such guidelines become tantamount to law and therefore only serve to stifle what the Congress had intended to be considered as acceptable practices.[2] In order to quell the leakage of intellectual property in the digital age, the US "Digital Millennium Copyright Act" (DMCA) has made it a crime to break through encoding schemes to obtain access to protected materials. To the DMCA, it does not matter if the use of these materials qualifies as fair use, nor does it matter that the protected materials are in the public domain. In the DMCA, bona fide fair uses and palpable infringements are thrown into the same basket. In the digital world, under such a regime, the right of public access to intellectual property is controlled not by law, not by an obligation to serve the public good, but by the self-interest of for-profit and other distributors of intellectual property.[2a] Further, since the process by which access to digital intellectual property disfavors the traditional transaction by "sale" and encourages "licensing," distributors can assume the right to control how and for what purposes, materials are used. In effect, the DMCA protocol gives distributors power potentially to control what people are allowed to say. For instance, a museum licensing use of its images can require that museum attributions not be changed or questioned, or it might permit an artist who allows her works to be available through license to impose conditions that require that all criticism of that work be positive and not harmful to her reputation -- rules normally considered inimical to our expectation of free inquiry and free thought.[3] Pending US database legislation (equivalents of which have already been enacted in other countries) similarly threatens the exercise of free speech and access to materials that everyone has always assumed to be functionally unencumbered for public use. Under this legislation, databases that contain even public domain content may control and limit how that content may be used. Because database copyright will renew automatically whenever anything new has been added, database control over public domain content will rarely expire. In other words, in a licensed digital environment (which deposits no tangible dated editions of its products), the public domain will forever be unavailable for free use. [3a] Access to the Public Domain and Fair Use (in my view) are part of the same system; they are intended to be public rights that provide for eventual universal access to the products of human creation. The former defines a period beyond which authors and creators must cede their rights. The latter defines select uses in which certain interests of society are deemed more important than the interests of the individual. Both exist to create a body of works (the "commons" as we like to call it) that are universally available to consumers and current creators.[4] In the world of art and art images, unfortunately, modern technology -- both digital technology and analog technology -- has provided means by which much of what would ordinarily qualify as public domain receives the same protection as works still under copyright. Statutes of many countries permit reproductions of visual works in the public domain (notably works of art) to be copyrighted so that by controlling access to unique public domain items like paintings and sculpture, copyright control in effect becomes vested in the copyrighted photographic reproductions of those works.[5] Fortunately the edifice of this system is beginning to show some cracks. Significantly (but valid in limited jurisdictions), one court has ruled (Bridgeman v. Corel) that mechanical reproductions of two-dimensional works in the public domain do not have sufficient originality to qualify as copyrightable entities.[6] The word "originality" is key, since "originality" is a prerequisite to obtaining copyright status only in the US and in England. (I'm told that Germany is considering encoding in statute the results of the Bridgeman finding.) But even if this concept is eventually accepted the world over, it cannot survive the process by which contractual agreements (in analog or digital environments) can require that users waive the rights given to them by statute and court decisions. The remedies to this onslaught on the public right to access and use the creations of mankind are not easy to prescribe, and in any case will be opposed by powerful and well endowed interests. One remedy might be to make the rights granted under statute and by courts, namely the right to use the public domain and the right of fair use, inalienable -- that they may not be surrendered by contract. Perhaps works in the public domain should not be allowed to be protected by encryption or that it should not be a crime to break through encryption schemes to obtain materials to which one is legally entitled. Perhaps copies of works in the public domain should be only available for sale and not by license. In our digital world, therefore, where unauthorized access is nearly impossible, the "right" of Fair Use might well have to be encoded into statute -- crafted in such a way that it is no longer merely a defense against infringement. While it is not the purpose of the above summary to suggest suitable and specific mechanisms with which to protect the public's interest in the creations of mankind, it is important, nonetheless, to recognize that the public has a vital interest and an irrefutable right to the public domain and to certain unrestricted fair and necessary uses of unlicensed copyrighted materials. It is equally important to understand that the public's interest in these rights extends to all users, be they students, teachers, scholars, commercial users of all kinds, and to anybody else, for whatever purpose, who might wish to avail themselves of these riches. A free and open society demands that the monopolies granted to content creators be limited in length and subject at times to abridgement. Ultimately, all creations of mankind belong to mankind; that is, they freely belong to anybody who needs them. Notes: [1]Siva Vaidhyanathan, at NINCH Copyright Town Meeting, New York Public Library, 9/24/01. An audio file (wav format) of this talk is available as a 25 megabyte zip file. Apply to author at requests@studiolo.org [return to text] [2] see: Robert Baron. "Trying Out the Guidelines (Guidelines Past and Present)," a paper delivered at the NINCH Copyright Town Meeting, Portland Oregon, September 27, 1997. [return to text] [2a] In a recent workshop arranged by the US Commerse department "Understanding Broadband Demand: Digital Content and Rights Management" which discussed Sen. Fritz Holling's proposed bill: Security Systems Standards and Certification Act (SSSCA), Preston Padden, head of government relations for the Disney Corporation, in response to objections lodged by the Electronic Frontier Foundation to the consequential loss of the right to fair use in this scheme, claimed that "There is no right to fair use, ... Fair use is a defense against infringement." quoted from Wired News, Dec 18, 2001. [return to text] [3] see; Siva Vaidhyanathan. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, New York, NYU Press, 2001, pp. 174-75. (Amazon.com) and Jeffrey P. Cunard. "Copyright Office to Public: You Can't Circumvent Encryption Technologies, Even for Fair Use," CAA News (Newsletter of the College Art Association), v. 26, n. 1. Jan 2001, pp. 3-4. [return to text] [3a] Vaidhyanathan. Copyrights. op. cit. pp. 163-167. [return to text] [4] Robert Baron. "Making the Public Domain Public," a paper delivered at the NINCH Copyright Town Meeting, San Francisco, California, 4/5/2000 (revised). [return to text] [5] Kathleen Connolly Butler, "Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions," Comm/Ent: Hastings Communications and Entertainment Law Journal, Hastings College of the Law, University of California, vol. 21, no. 1 (Fall 1998), pp. 55ff. [return to text] [6] Barry G. Szczesny, Esq., AAM Government Affairs Counsel, "Bridgeman Art Library v. Corel Corporation," (Excerpts from April 1999 American Association of Museums Annual Meeting Presentation, "What's Happening in Washington") available from the Intellectual Property web page of the Registrar's Committee of the American Association of Museums: RARIN The Bridgeman decision is reproduced on the web page of the Corbis Corporation: Bridgeman. [return to text] last edited 1/7/2002 Robert's Intellectual Property Page
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