Dr. Matthew Rimmer Takes A Closer Look At Fair Use
from the fair-use-of-the-week dept
For this week’s Favorites of the Week, Dr. Matthew Rimmer wanted to focus in on some of the specific points that came up in the Congressional hearing on fair use earlier this week. While a bit different than our usual “favorites of the week” post, it’s a really fantastic in-depth look at some of the issues, which I’m sure many of you will enjoy.
It is twenty years since the Supreme Court of the United States handed down its landmark decision on copyright law and the defence of fair use in the “Pretty Woman” case, Campbell v. Acuff Rose Music. Inspired by the jurisprudence of Justice Story and Justice Leval, Justice Souter developed a doctrine of transformative use. His Honour stressed that “the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.” Justice Souter observed: “Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”
In January 2014, the United States Congress held a hearing about copyright law and the scope of the defense of fair use. The House of Representatives Judiciary Committee – through its Subcommittee on the Courts, Intellectual Property, and the Internet – heard a number of pieces of evidence and testimony. Mike Masnick provided an astute summary of the issues raised in the hearing on Techdirt. Brandon Butler said that the hearing put “transformativeness on trial.”
Professor Peter Jaszi is a leading public scholar and intellectual on matters of copyright law. He was instrumental in co-editing landmark collections of copyright law and authorship, such as The Construction of Authorship. Jaszi was quick to argue against the introduction of a copyright term extension in the United States. He has written extensively about the operation of the copyright defense of fair use – writing works such as Reclaiming Fair Use with Patricia Aufderheide.
In his written evidence, Jaszi emphasized four themes to the United States Congress about the defense of fair use. First, he observed that a “citizen’s ability to make some socially and economically positive uses of copyrighted material without permission is a right, and now widely recognized as such – including acknowledgements by both the Congress and the Supreme Court, which has stressed the connection between fair use and the freedom of expression secured by the First Amendment.”
Second, Jaszi commented that “fair use is working.” He emphasized: “Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.” He commented: “What’s notable about the current situation is that more and more business and practice communities are actively acknowledging the ways in which their contributions to our collective cultural and economic life depend on the ability to exercise the right of fair use in appropriate circumstances.” Jaszi has been a part of a recent study considering how artistic communities grapple with questions of copyright law, permissions, and fair use.
Third, Jaszi stressed that the defense of fair use is patterned, reliable, and predictable. He scoffed at the complaints of critics that the defense was vague, uncertain, and unpredictable: “The current state of the law is proving those critics wrong.”
Finally, Jaszi maintained that there was no pressing need to revise or reform the defense of fair use in the United States. He observed that “the last decade has seen a proliferation of decisions applying this flexible, purpose-based doctrine to uses in the digital domain, from the development of interoperable software products and Internet search technology, to the practice of remix culture, though mass digitization in the promotion of access to knowledge.” Jaszi stressed: “In effect, in only a few short decades, the courts have developed a robust ‘unified field theory’ of fair use which is fully capable of meeting the digital challenge and should be allowed to do so.”
In conclusion, Jaszi held that “the fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation.” He commented: “We can only wonder (with some bemusement) why some of our most important foreign competitors, like the European Union, haven’t figured out that fair use is, to a great extent, the ‘secret sauce’ of U.S. cultural competitiveness.” Countries like Australia are at a competitive disadvantage, because their defense of fair dealing is much more limited and restricted than the United States doctrine of fair use.
In his testimony, Peter Jaszi deftly responded to questions from members of the United States Congress. Congressman Thomas Marino asked whether fair use encouraged piracy. This conflation of fair use and piracy is misleading and meretricious. The copyright industries have increasingly sought to slander fair use, by demonizing the defense, and scapegoating the doctrine for industry concerns about copyright infringement. Jaszi commented that internet piracy is not fair use because it would not meet the four factors under fair use and does not constitute transformative use.
Parker Higgins and Mitch Stoltz noted: “One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use.” Jaszi defended the legitimacy of fair use precedents relating to Google Books and Hathi Trust. He maintained that such decisions were success stories, rather than problems. Jaszi made the strong point that the decisions promoted the fundamental principles of copyright law – the progress of science and the useful arts, access to knowledge and education. The Hathi Trust decision is particularly socially useful because it addresses the pernicious problem of disability discrimination.
Moreover, Jaszi also discussed the new fair use ruling involving the financial information company, Bloomberg. The debate in the United States Congress was further heightened by a new United States decision on copyright law and fair use. In the case of Swatch v. Bloomberg, the Court of Appeals for the Second Circuit held that Bloomberg’s recording and distribution of an earnings call by Swatch was protected by the defense of fair use. The court commented:
In the context of news reporting and analogous activities, moreover, the need to convey information to the public accurately may in some instances make it desirable and consonant with copyright law for a defendant to faithfully reproduce an original work rather than transform it. In such cases, courts often find transformation by emphasizing the altered purpose or context of the work, as evidenced by surrounding commentary or criticism.
Mike Masnick commented upon the ruling: “All in all, a nice clear win for fair use even when the full work is used for commercial reasons.”
Edward Black from the Computer and Communications Industry Association lamented that technology developers were not well-represented in the debate over copyright law and the defense of fair use in the United States Congress. He maintained that the defense of fair use was particularly important in facilitating a range of emerging technologies:
The same fair use principle that saved home video has also served MP3 players, DVRs, smartphones and a considerable portion of modern Internet functionality, like cloud computing, that we depend upon today. In recent years, we’ve seen courts invoke fair use to validate a variety of transformative, socially valuable services, including online search engines, including image and book search; commercial-skipping and time-shifting with DVRs; and a service that compares students’ papers against a database for plagiarism (who, understandably, might not want to authorize use of their papers to prevent cheating).
Black concluded:”Not only does fair use serve extensive societal interests, it has been a commercial boon to the U.S. economy — something policymakers should be interested in protecting.”
Mike Masnick makes the strong point that “fair use is the public’s right” and not only provides protection for “free speech” but enables “great and powerful innovation as well.” The emergence of new technologies such as 3D printing and cloud computing will pose new challenges for copyright law, and the flexibility of the defense of fair use, and the doctrine of transformative use.
Remix Culture, Fan Fiction, and Transformative Works
Also for the same hearing, Naomi Novik, provided an eloquent submission presentation to the United States Congress on copyright law, fair use, and remix culture.
One of the founding members of the Organization of Transformative Works, Novik is an American writer who is best known for her Temeraire series, which tell an alternative fantasy history of the Napoleonic Wars, featuring dragons.
This was a timely submission given the copyright litigation of late over remix culture. There has been much copyright litigation over literary mash-ups such as The Wind Done Gone and 60 Years Later; appropriation art by Shepard Fairy and Richard Prince; and digital sampling and musical quotations; and television advertisements such as GoldieBlox’s parody of the Beastie Boys.
Novik discussed the role of the defense of fair use with respect to remix culture, fan fiction, and mash-ups. She noted: “I am not a lawyer, but as one of the creators and artists whose work is deeply affected by copyright law, I hope to explain how vital fair use is to preserving our freedom and enabling us to create new and more innovative work.” Novik maintained: “I urge Congress to not only preserve but strengthen fair use, to encourage still more innovation and creative work by more new artists. I would ask in particular that Congress consider improving protections for fair users, especially individual artists, who are threatened with lawsuits or DMCA takedowns.”
Nostalgically, Novik recalled her early experiences, experimenting with fan fiction in an online remix community:
In 1994, while I was still in college, I first came across the online remix community. Over the next decade, before I wrote one word of my first novel, I wrote fanfiction, built online computer games, wrote opensource archiving software, and created remix videos. I met hundreds of other artists creating their own work, and found an enthusiastic audience who gave feedback and advice and help. I had no money for licenses or lawyers. Neither did my fellow artists. No one would have sold us one anyway. We weren’t trying to make money off our work. We were gathering around a campfire to sing and tell stories with our friends. The campfire was just a bigger one, and instead of telling new stories about Robin Hood, we told new stories about Captain Picard, because that was who we saw on television every week. Fair use gave us the right to do that.
Novik emphasized: “Our work was transformative in every sense of the word.” She stressed: “We weren’t simply retelling the old stories — we were creating new stories, and ones that weren’t being told.” Novik commented: “We transformed the original work, and we transformed ourselves by doing so.” She discussed how the creative community facilitated creativity: “We learned to think of ourselves as writers, artists, programmers, as creators.” She observed: “We took our craft seriously and so did our audience, and that audience was invaluable.”
Novik reflected that the history of art, literature, and drama has been one of borrowing:
Vincent van Gogh deliberately copied Japanese woodcuts so that he could find his own style. Shakespeare borrowed heavily from earlier sources. No one could deny that he transformed them. But imagine if the laws of his time had barred him from doing so. We wouldn’t have Hamlet, we wouldn’t have King Lear, we wouldn’t have Romeo and Juliet. And if Leonard Bernstein hadn’t borrowed from Romeo and Juliet, we wouldn’t have West Side Story. Now if we prevent the next generation from borrowing from West Side Story, we cap the flow of creativity, we dam the river of innovation.
Novick indicted that “Original work, work that stands alone, doesn’t just pop up out of nowhere.” She stressed that “It is at the end of a natural spectrum of transformation.” Novik emphasized that “Fair use protects this spectrum, this incubator if you will.” She noted: “It’s a space where artists can play with ideas and develop our skills, and share our work within a community and learn.”
Novik was skeptical of arguments by copyright owners about the utility of copyright licensing as a solution instead of fair use. She noted: “Licensing is not a realistic option for most artists and communities who rely on fair use.” Novik observed: “On the purely practical level, the vast majority of remix artists doing non-commercial work simply don’t have any of the resources to get a license — not money, not time, not access.” She stressed: “And speaking as a copyright holder, licensing is not a realistic option for most of us on the other side of the problem either.” Novik commented: “I very much don’t want the difficulty and legal risk and expense involved in coming up with a license and issuing one to everyone who would like to write their own story about becoming a dragon captain in the Temeraire universe.” She emphasized: “And more importantly, licensing still doesn’t work even if the practical considerations are removed, because licensing invariably stifles transformative work.”
Naomi Novik was concerned about the impact of copyright lawsuits on remix artists. She pleaded:
I would ask Congress to make it easier for developing artists, who are often at a significant disadvantage currently, to exercise their fair use right. I have never received a ceaseanddesist letter. But some of my fellow remix artists have, despite the fact that their work was completely noncommercial and highly transformative. It drove several of them completely out of the community and caused them to stop sharing their work, or it stopped them creating it at all. Virtually every remix video artist I know (including myself) has had their videos taken down from multiple platforms by automated systems that look for even minute fragments of copyrighted work. In order to restore them, if that’s even possible, they have had to file countercomplaints in the face of terrifying automated warnings telling them that they could be fined enormous amounts of money, and making them feel like criminals.
She lamented the destruction of remix culture: “I have gone hunting for stories and art and videos that were so good they stuck in my mind even years later, only to find out that they had been yanked down and were effectively destroyed.” In this context, there is a need for Fair Use Projects to ensure that creative artists have legal support, so that they can exercise their fair use rights.
In conclusion, Novik emphasized the importance of the defense of fair use to remix culture, amateur production, and fan fiction:
Our country is the world leader in innovation because here we ask those what if questions, and we are free to imagine what the answers look like. We’re encouraged to look around us at the things that exist and imagine how we could make them better, how we could take them to the next level, how we could transform them.
That is the spirit behind fair use. Fair use invites us to tinker and transform, and it frees us to explore ideas and share them with one another. It gives new artists and creators more tools to play with early in their careers and facilitates the evolution of genres and new forms. Any narrowing of fair use is inimical to this spirit.
The eloquent submission of Novik was an important reminder that the defense of fair use plays a critical role in encouraging artistic expression, creative freedom, and cultural sharing.
Unfortunately, creative artists in other jurisdictions do not necessarily have the flexibilities of the defense of fair use under copyright law. In Australia, there has been much policy debate about the inadequacies of the current defense of fair dealing, which is limited to specific purposes. Notably, in the “Kookaburra” case, Men at Work’s classic Australian anthem, “Down Under”, was found to have infringed the copyright in a Girl Guide campfire song about kookaburras. This has led to much debate as to whether there should be a modernization of Australian copyright law, and the introduction of a defense of fair use.
The IT Pricing Inquiry, and the Australian Law Reform Commission heard a range of evidence, supporting the introduction of such a defense into Australian law. The new Conservative Government, though, seems antagonistic to law reform in respect of copyright exceptions. The new Attorney-General, George Brandis, has been sympathetic to the demands of copyright owners for stronger measures with respect to copyright enforcement.
Furthermore, there is a need to ensure that remix culture, fan fiction, and mash-ups are not penalized under the proposed Intellectual Property Chapter of the Trans-Pacific Partnership.