We Should Stop Calling Fair Use A 'Limitation & Exception' To Copyright; It's A Right Of The Public
from the that's-important dept
Language matters. In debates we see over copyright and other issues, it’s often amazing how the industry has really twisted the language to their advantage. A few years ago, Bill Patry wrote an excellent book all about how the entertainment industry inserted its preferred language into all of the debates over copyright, such that they can claim the moral high ground on an issue that is really a business model/economic one for the most part. Of course, those of us pushing for fixing problems in copyright law unfortunately sometimes fall into the same traps. Just recently, for example, we talked about how we should stop calling things “orphan works,” and more accurately describe them as they are: hostage works.
I was thinking about this while watching Jamie Love’s recent interview with Alan Adler, the VP of Legal & Gov’t Affairs for the Association of American Publishers. We already discussed the substance of the discussion around various international agreements for “limitations and exceptions” to copyright law. “Limitations and exceptions” has been standard terminology for things like fair use, fair dealing and other “valves” to stop copyright from being completely oppressive. However, as I watched Adler, some of his comments around those things bothered me. You can watch it below, but I’ll call out a few quotes:
“For publishers, they really don’t have a business, unless they own intellectual property assets, that they’re able to use, control and exploit in the marketplace. So the threat of piracy and the threat of restrictions, limitations, exception to their rights as copyright owners is always a concern to them, because it effects the way they do business. The WIPO is now looking at creating international instruments addressing a number of different things — but all of them have one thing in common: they would cut back on the rights of publishers as copyright owners by introducing new limitations and exception to those rights…”
“Interestingly, our interest and concern about whether it’s a treaty or some other form of international agreement, probably would not have been much of a problem if we were only working on the issue of print disabilities. But with the effort to develop supposed proposed treaties on limitations and exceptions for educational uses and also a separate effort moving parallel to this, to develop a similar treaty on limitations and exceptions for uses by libraries and archives. The problem we have in the area of print disabilities is we really don’t want to establish a precedent of developing a series of treaties that specifically focus on trying to set forth minimal limitations and exceptions to the rights of copyright owners. Up until this proposal with respect to print disabilities, generally the treaties and other international agreements that have been devised by the WIPO have been to establish the minimal rights of copyright owners — not the limitations and exceptions to those rights. And the notion that now, because of the concerns of developing countries and some of the agreements that have been made to pursue an agenda of issues that are of concern to developing countries, we’re now beginning to focus on limitations and exceptions.”
I have to admit that it’s somewhat refreshing that Adler comes right out and says this honestly: that the companies he represents are worried that it might change their business models, rather than making any kind of unsupported moral claims or suggestions that these “limitations and exceptions” are somehow going to destroy content.
That said — and this comes through strongly in that second quote above — it’s a bit disturbing the way he seems to think that the only thing at issue is the rights of copyright holders, and the way he only describes limitations and exceptions in terms of how they take away rights from the copyright holders. That’s incredibly misleading. These “limitations and exceptions” with things like fair use are actually rights of the public. Copyright has always been a restriction on the rights of the public. We can argue over whether or not it’s a reasonable or appropriate restriction, but that’s what it is. When we flip the language and call things like fair use — which give back some rights to the public — “limitations and exceptions,” we’re unfortunately playing into the language framing of copyright holders, and allowing Adler to say things like he does above and have them sound marginally reasonable.
Yet, if you changed around what he said to make it more accurate by noting that these limitations and exceptions are really about increasing the rights of the public, you begin to realize that what he’s saying is pretty crazy:
“For publishers, they really don’t have a business, unless they hold government-granted monopoly privileges, that they’re able to use, control and exploit in the marketplace. So the threat of infringement and the threat of the public regaining some of their own rights is always a concern to them, because it effects the way they do business. The WIPO is now looking at creating international instruments addressing a number of different things — but all of them have one thing in common: they would increase the rights of the public by restoring their ability to make use of those works…
“Interestingly, our interest and concern about whether it’s a treaty or some other form of international agreement, probably would not have been much of a problem if we were only working on the issue of print disabilities. But with the effort to develop supposed proposed treaties on the public’s rights to use works for educational uses and also a separate effort moving parallel to this, to develop a similar treaty on the public’s right for uses by libraries and archives. The problem we have in the area of print disabilities is we really don’t want to establish a precedent of developing a series of treaties that specifically focus on trying to set forth expanded rights for the public. Up until this proposal with respect to print disabilities, generally the treaties and other international agreements that have been devised by the WIPO have been to take away and limit the rights of the public — not to expand and clarify those rights. And the notion that now, because of the concerns of developing countries and some of the agreements that have been made to pursue an agenda of issues that are of concern to developing countries, we’re now beginning to focus on the rights of the public.”
That is a lot more accurate version of what he’s saying when you realize the nature of what’s really being discussed. So even as we’re happy that at least there’s been a lot more talk of “limitations & exceptions” (even by the USTR in the TPP negotiations), it seems wrong to cede the framing of the discussion to special interest industry folks. These aren’t “limitations and exceptions,” they’re the public’s right to access, to create and to express themselves.
Filed Under: alan adler, blind, copyright, fair use, limitations and exceptions, public, public rights
Comments on “We Should Stop Calling Fair Use A 'Limitation & Exception' To Copyright; It's A Right Of The Public”
Public rights? The public has no rights! The only rights the public has is to be sued!
/copyrightholder
Exceptions to exceptions
I always talk about copyright as an exception to the rule that I can do what I like with the things (copies, in this case) I own.
So fair use and the like are exceptions to those exceptions.
DRM is an exception to the exception to the exception.
And the rulemaking in the DMCA that allows you do things like unlock your cellphone are exceptions to the exception to the exception to the exception.
It does illustrate nicely how absurd copyright law has become.
Re: Exceptions to exceptions
Indeed copyright is wrong (I mean wrong name, but also plain wrong :)) and ought be called copyrestriction or worse.
Re: Re: Exceptions to exceptions
I personnally like the name “copyrestriction or worse”
particulary the or worse part
Re: Re: Exceptions to exceptions
We could always start the trend to rebrand it “copywrong”
Re: Re: Exceptions to exceptions
Copypriviledge would be more apt, and copymonopoly works too.
Re: Re: Exceptions to exceptions
Copy, um, aw, screw it I’m going to sue.
renaming
I wholly support carefully reframing this issue with renaming, where it is possible. We have worked hard, in Peter Jaszi’s and my work, to invoke the concept of right in relation to fair use; for too long it was regarded as “merely a defense” when this defense like self-defense is in fact a right. We have worked hard to remind people that this is a First Amendment right, which the Supreme Court agrees with but which monopoly rights maximalists refuse to acknowledge.
I don’t believe that what are currently technically known as exceptions and limitations in international law are expanded rights for the public; I think they are simply rights for the public–and the future, and innovation. Honoring them is the first necessary step to expanding this collection of tools to exercise the right more.
At the same time, the reality is that in international law (outside the areas where there is fair use, which currently are US, Philippines, and Israel), where the exceptions and limitations language is endemic, copyright policy is so construed that it is much more difficult to make the Constitutional or policy case for balance, or rights for the public.
What has been truly significant rhetorically, in my opinion, in the international arena, is invoking the need for innovation. This is one way of referencing the fact that these balancing features preserve the capacity of future creators to create. That impresses politicians across the political spectrum.
But I will follow this with great interest; I think reframing the debate is critical.
Re: renaming
Reframing the debate is definitely necessary. Another important point that needs to be made and understood is the issue of DRM.
In any other context, installing code onto someone’s computer whose sole purpose is to take control of the computer’s functionality away from the computer’s owner and give that control to a remote entity instead would be recognized as an act of hacking, which is highly illegal. And furthermore, a private entity using hacking tools in a punitive manner against those that they suspect of breaking the law would be recognized as an act of vigilantism, which is also highly illegal.
So how is it that when the vigilante in question is a copyright holder, law and common sense are turned on their heads and it’s suddenly perfectly legal to hack my computer, and if I resist in any way, I am branded a criminal?
Here’s what people need to be saying, but aren’t: Piracy is the copyright owner’s problem. It is not my problem, and the copyright owner has zero right to make it my problem unless and until he can prove in a court of law that I am part of the problem. The use of DRM technology needs to be criminalized under the law, not protected by it. Until we fix that, no other copyright reform will be meaningful because the owners can simply use DRM and anti-circumvention laws as an end-run around our rights.
Re: Re: renaming
Taking that further, intentionally removing functionality originally designed into a device I legally purchased (ie. my property) should in and of itself constitute illegally tampering with someone else’s ACTUAL property as opposed to the imaginary kind the DRM is designed to protect.
Re: Re: renaming
Reframing the debate is misleading at best.
How canyou claim “fair use” without first accepting that copyright exists? Without copyright, there would not be “fair use” there would just be “use”. Those who create the content would operate under a different set of assumptions, and the production of content would be different as a result.
What Mike (and some others, it seems) are trying to do is to claim Fair Use to be something more than it is, a series of EXCEPTIONS to copyright law.
Re: Re: Re: renaming
“misleading at best”? What sort of ridiculous statement is that? Your phrase is “indicative of an idiot at best”.
Reframing a debate is a perfectly standard and correct method for analysing a set of rules. I doubt Mike is realistically expecting the language of the laws to be changed, but this method reveals the clear imbalance in favour of copyright holders. Therefore, interpretation of the laws will naturally tend to favour them too, and so not favour the general community.
So please stop talking Bollocks.
Re: Re: Re:2 renaming
Reframing it in this case is to attempt to be misleading and outrightly wrong. Fair Use is an exception to copyright law, plain and simple:
Works are copyright and subject to licensing EXCEPT in cases of fair use.
Trying to frame it differently is just ignoring reality.
Re: Re: Re:3 renaming
Works are copyright and subject to licensing EXCEPT in cases of fair use.
No, I think you’ve got it wrong. Works are free to be used as the building blocks of culture, copied, shared, etc. EXCEPT in cases where it’s locked up under copyright.
All fair use does is say that you can use the works as you would be normally in the absence of copyright. Copyright is the exception. Fair use is the natural state of things.
Re: Re: Re:4 renaming
“No, I think you’ve got it wrong. Works are free to be used as the building blocks of culture, copied, shared, etc. EXCEPT in cases where it’s locked up under copyright.”
Mike, what you are talking about isn’t fair use, it’s called “PUBLIC DOMAIN”. Your gripe is that copyright keeps things out of the public domain.
Copyright isn’t an exception, it’s been the law of the US for a few hundred years. You can bury your head in the sand and ignore it, but it is a fact.
Facts… slippery things you hate to deal with.
Re: Re: Re:5 renaming
If you look at how US constitutional law is set up you’d see it’s legal to abolish copyright but not to grant unlimited copyright(in other words, all works must become public domain at some point).
I think it’s fair to say public domain is the rule and copyright the exception.
Re: Re: Re:3 renaming
Reframing something in this way is simply writing the same text looking from the opposite perspective. It still says the same thing.
And your incorrect statement about fair use is a perfect example of why such badly written arguments easily twist into misinterpretation.
As Mike says, copyright is the exception which is why it needs to be granted by current law.
Re: Re: Re: renaming
If you don’t want someone to steal (we say copy) your idea, keep it to yourself. You don’t build on the shoulders of giants, you’re original. If you don’t like the idea of someone riffing on your thoughts or the possibility that the can express it better, just don’t tell us. Simple really. Law has no part of it. They’re stupid laws, they hold us back. Go cry in your cave.
Who cares? The real is what use is or is not fair.
This blog likes to get bogged down in endless verbiage over things like this. The real issue is what is fair. Is it fair for an aggregator to make money after doing so little work? Is it fair for blogs to just use a photograph because they’re too cheap to pay a photographer? Is it fair to quote extensively and add nothing in between?
Drawing these lines is hard. I can’t see how this word change makes a difference.
Re: Who cares? The real is what use is or is not fair.
The aggregators provide me real value so yes it is fair.
It is fair to quote extensivly if I would not have seen the quote otherwise, it provides real value to do that.
“Fair” has nothing to do with the amount of work you put in or how talented you are, it’s the product you actually provide winning/losing in the free market system.
Re: Who cares? The real is what use is or is not fair.
That you think drawing those lines is hard indicates you have a bias towards “rights holders.”
The problem is that the public (including aggregators and blog writers) have rights too. We just don’t have the wealth to spend on lobbyists like the copyright holders do. The public has rights to quote articles because not being able to relay information makes that information useless and makes communication ineffectual. And it only increases the value of the original content because it spreads it to a wider audience and makes it more well known.
When the copyright holder’s default answer to whether or not someone should pay for using “their” content is always “Yes!,” they’re not the people we should be listening to when we’re considering what’s “fair.”
You’re ignoring that aggregators (by definition) aggregate, which is a form of work and is a service to its readers. My RSS reader is an aggregator. I wouldn’t visit all the websites in my RSS feed without their articles showing up in that feed. If the publishers wants more eyeballs and my RSS reader brings them my eyeballs, how is that not a service, both to me and the publisher? Why should the aggregator have to pay to advertise and bring eyeballs to the publisher? Is that fair in your opinion?
Re: Who cares? The real is what use is or is not fair.
Is it fair that websites can get shut down for over a year without any sort of evidence to support why it should be shut down? Is it fair that people can get extradited to the U.S. just because their site had links to other sites? Is it fair that something you paid good money for can only be used one way and can never be copied legally?
Tell me, bob, what do your masters at the MPAA and RIAA tell you?
Re: Who cares? The real is what use is or is not fair.
Everyone has a different idea about fair. Yours is not mine. Maybe you can get an operation so you can see gray, or possibly color. The only thing you add to any conversation is either “BUT THE LAW” or “GIMME”. We are a community, we all add something. Just because you don’t want to see it, doesn’t make you right.
Re: Who cares? The real is what use is or is not fair.
It seems that some people see fair use as a one way street.
For example, it’s ok for big media to use the work of others (many times without any attribution) but it is piracy for others to use theirs. And apparently they see nothing wrong with this attitude.
Re: Who cares? The real is what use is or is not fair.
I agree with bob for the most part. There has to be some respect for the created work. If one chooses to give it away, awesome. However, your argument is akin to saying if I build a bike in my garage, I do not actually have the right to prevent the public from using it freely. Indeed that they do have the right and I’m being (perhaps unfairly?) protected from that right by law. You may argue that the two ‘products’ are not the same. However, they both represent time and money to the creator. That should be respected. IMHO a society without property rights – regardless of the property – can only become less creative, less productive. Overall the society itself would suffer.
Re: Re: Who cares? The real is what use is or is not fair.
No, it’s akin to saying if you build a bike in your garage you can’t stop others form building othere like it when they see it.
Re: Re: Who cares? The real is what use is or is not fair.
And copyright law is an unnatural monopoly, the erosion of my right to modify my property into the shape I choose.
My first thought...
…is we should stop calling infringement theft too because
1. Sharing is giving not taking and
2. Theft requires deprivation.
Go further Mike...
It’s not expanding the public’s rights. It’s RESTORING them.
I’ve been much more cautious in my usage of terminology pertaining to these issues since I started reading this site. This caution manifests itself in a myriad of ways:
1. I always say “copyright holder” instead of “copyright owner.”
2. I never refer to works as “properties” or use the term “intellectual property.”
3. I, too, have begun to use the phrase “hostage works.”
4. I say that works are “under copyright restriction,” rather than “under copyright protection.”
5. I say “released to the public domain” instead of “lapsed into the public domain.”
And so on.
Re: Re:
I never […] use the term “intellectual property.”
I have started using “imaginary property” though. It seems a more apt description, actually.
It’s actually worse than that. Copyright and patents are the exception and limitation. Not fair use.
Property rights are considered inalienable rights in the Constitution. They’re also considered natural rights. They can be thought of as inherent rights. They’re not given by government. They are given by nature itself. The purpose of government is not to give such rights, but to protect such rights. And the government can only intrude upon such rights through due process.
Unlike property rights, copyrights and patents needed to be explicitly included in the Constitution because they were not natural. The concept of giving out monopoly rights to ideas was contrary to nature. Thus, such monopolies were by their nature an exception and highly limited.
As pointed out here before. Copyrights originally lasted only 15 years. And even more interesting, copyrights did not cover music or literature.
But as money was made on these limited monopolies, those who collected the rents needed more gates from which to collected upon. So music was added. Literature was added. The length of time was increased. The monopoly on publishing was not enough. Soon performances were added. And now we’re stuck with a convoluted draconian system where we need to pay a license to combine music with video, separate from the publishing right, and separate from the performance right.
The reason we think of fair use as a limitation and an exception, is because for over two centuries, copyright law has turned on its head.
Re: Re:
I so want to vote insightful, but button text browser no has. 🙁
Re: Re:
“But as money was made on these limited monopolies,”
You got the rest of the sentence wrong. Let’s try:
“But as money was made on these limited monopolies, people realized that they had potential system that would allow artist, writers, and musicians to no longer be beholden to a single patron or person paying their bills, and instead that their work could be sold off at a fraction of a cost per copy to the people who truly enjoy the work, the general public. Instead of answering to the poor taste of a single patron, they were at the mercy of the public, who each contribute money to fund their life as an artist”.
Copyright isn’t a tool to lock things up (although Mike would like you to think that), but rather the basis for a system that has allowed us to massively increase content, content distribution, and to allow more people to live as artists rather than having to put real life needs ahead of their skills. I for one am thankful that artists can make art all of their lives free of the rat race, because I am a consumer who benefits from the system.
Re: Re: Re:
You might be able to convince me that it started out that way, but to say that it still is today is willful ignorance at best, and outright deception at worst.
Re: Re: Re:
“But as money was made on these limited monopolies…”
You left out the next part.
Non-artists with money then realized that they could, like the railroad companies had done before them, push the government around and influence it to pass laws and policies in their favor that allow them to maximize profits and create artificial scarcity, as well as keep many competitors out of the market, while at the same time they had lawyers figure out how to manipulate contracts and had accountants create deceptive accounting practices in order to weasel artists out of their copyrights, force them to take bad conditions or get no publicity in a locked system, and screw them out of the proper proceeds for their work. And then they hired shills to troll the internet with bad logic to back up these corrupt conditions and espouse them as if they were good for artists, consumers, and the children. They also saw fear mongering and moral panics as a good weapon against anyone who tried to oppose their tactics, such as labeling anyone who disagrees with them as pirates and thieves and freetards.
Re: Re: Re:
>Copyright isn’t a tool to lock things up
Coming from the advocates, such as cooks who claim IP rights to ban people from photographing their food, and the CEO who demanded SOPA to shut down sites of parody or criticism, colour me not convinced.
Re: Re: Re:
You are running with the current interpretation of copyright.
This is not how it was intended by any of the people responsible for the implementation of copyright.
You got it backwards. I know that Disney and the rest strongly want you to believe this but, it’s just not the way it is. The public/government is giving you a limited monopoly, to allow you the opportunity to make a limited living from your works, which I can see as a noble idea.
Unfortunately, many organizations and corrupt politicians have corrupted this idea and made it a lifetime privilege at the expense of the public.
Sooner or later, it was intended that your limited monopoly would come to an end and the works would move to public domain as re-reimbursement to the public for your monopoly.
Fair use is really just free advertising for the copyright holder. Fair use means that I can use a small segment of your works to illustrate a point or hype your efforts. parody falls under this too but we’ve all seen how thin skinned some people can be over this.
If everything was the way it was initially intended to be, I doubt we’d be having all of these discussions.
As a tax paying member of the public, I am not so sure that current copyright is giving the public the best bang for it’s buck. But I am open to discussion on this if you are willing.
My mistake
And here I thought Copyright was an exception to natural human rights.
Intentional? Freudian?
> because it effects the way they do business
“affects” would seem to fit here better, even if the speaker probably does believe that without copyright there would be no publishing.
Exceptions and limitations
If fair use is just an exception to copyright, then copyright is just an exception to public domain.
“Copyright? Oh, that’s just an exception…”
Normal people have rights too, copyright invade that space to take away those rights.
Another element of Adler's interview
What strikes me more about the whole speech is the assumption of industry rights. If we go back to the original rationales of copyright, where was industry placed? Industry should be ascribed certain privileges to the extent that it facilitates dissemination of content. It is a bridge between authors and users if you will. As such, profit maximization or whatever underlies that speech is totally outside of copyright’s aims. Recoupment of investment and incentive is one thing, another one is getting the highest profit possible.
Obviously
Seriously this article is so obvious it is actually sad it has to be written, copyright is protection of the artist against big business as i have said before, it is not protection against the individual. If anything the RIAA and others should be supporting the artists against the businesses that have corrupted copyright laws and turned them into a law for the big businesses not against them.
Once the fight is taken to the front lines and the actual copyright problems are identified only then can we all support copyright doing what it was designed for.
If anything it is in the artists best interest to support major changes to copyright laws, where big business is not allowed to buy the copyright to an artists works and then use that to create a fortune while leaving the artists earning next to nothing.
But i see the light at the end of the tunnel, things are changing and will change even more and at a faster pace when the gatekeepers lose there voices in the discussions of the future of copyright. Where it is only the voice of the customer and the artists that are listened to.
I hope one day we finally turn this concept around and declare copyright an “exception and limitation” or fair use.
Perhaps then we’ll truly enter the Age of Information.
Copyright exceptions
GOOD FOR YOU, Mike!
MAWR copyright!
I think copyrights need to be longer. Just think of the poor great great grand children of these artists. How are they to survive? Who cares if the constitution states “for a limited time,” who cares if the point of copyrights is to permit artists to benefit from their work, but to bring art, music and other aesthetic works to the public domain for the enjoyment of all. I agree with the MPAA that copyrights should be used to punish those that want to appreciate aesthetic works and more importantly it should be used to restrict anyone who wants to freely publish, or otherwise use free distribution of their works to promote and achieve success without using the MPAA, the record labels, publishers, studios or the authors guild. Finally and most importantly, I think copyright should be used to promote bigger business and protect the “industry” from an inevitable fatal collapse, since small studios (Pixar used to be one) and independent musicians, artists and authors should never be allowed to succeed in the US!
it should always stay a limitation and exception, you do not have any “right” to take and use someone elses creation
Should There Be A Right To Copyright Exceptions?
See: Copyright is an Exception to the Public Domain.
http://www.techdirt.com/articles/20100125/0539377890.shtml