Reminder: Fair Use Is A Right — And Not 'An Exception' Or 'A Defense'
from the it's-free-speech dept
This week is Fair Use Week, according to the Association of Research Libraries, and that’s as good a time as any to remind everyone that it’s wrong to refer to fair as merely a “limitation or exception” to copyright law — or merely a defense to infringement. It is a right that is protected by the First Amendment. The Supreme Court has regularly referred to “fair use” as a “safeguard” of the First Amendment, allowing copyright law to be compatible with the First Amendment. As such, it seems bizarre that fair use is not seen as the default, rather than the other way around. If we are to protect the First Amendment, and not allow for speech to be stifled, at the very least, we need a greater recognition of the importance of fair use in guaranteeing that the First Amendment’s principles of free speech are allowed to thrive.
Freedom of expression is a right that may not be abridged by the government — except in a few narrowly defined cases. Copyright is one of those cases — and we can argue about whether or not that’s appropriate, but at the very least, it’s important to shift our view from thinking “copyright” is the norm and that fair use is a small “exception,” to one where we recognize that free expression is the norm, with fair use making sure that freedom of expression is enabled, even when copyright is present.
Unfortunately, too many powers that be in legacy industries have sought to flip this equation. They deny that fair use is a right — insisting it is merely a “defense” to infringement. While it is true that under current law, in order to be able to demonstrate your fair use rights, you need to raise it as an affirmative defense to an accusation of copyright infringement, that does not diminish the fact that fair use is simply a procedure for guaranteeing your First Amendment rights. It is not a small issue that’s only important in academic debate, but rather a central issue that determines just how strongly we, as a society, believe in the First Amendment.
Finally, how could we conclude a post on fair use without including some fair use in it? How about this video, misleadingly called The Infringement Melody (Section 107 of the Copyright Act clearly states that “the fair use of a copyrighted work… is not an infringement of copyright”), which appears to be a student project to come out of a popular Yale class on Law, Technology and Culture, in which fair use is a big part of the curriculum: