The Digital Media Project

 

Source

Nicholas Bentley

Title

TRU #33 of fair use

No.

040414bentley02r01

 

Name:

Nicholas Bentley

Affiliation/additional information:

Active participant

Date submitted:

2004/09/01

 

#

Criteria

Description

1.

Name of TRU

TRU of fair use

2.

Summary description of TRU

Fair Use is an important limitation on an author's or copyright holder's exclusive reproduction rights. Fair uses of content traditionally include such activities as copies for scholarship, research, news reporting, comment, criticism, and parody.

3.

Use records of TRU

The main justification for the 'Fair Use' doctrine has always been to balance public and copyright owners rights but in turn this generates a tension between copyright holder's and consumer's interests that is as evident today as it has always been.

'The idea of fair use appeared in England at the beginning of the 19th century in the case of Cary v. Kearsley where the court recognized a right to “fairly adopt part of the work of another” in order to avoid putting “manacles upon science” .' [H]

Traditional Fair Use:

Quotations - 'It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries. ' [K] Also see TRU #1 to Quote, http://www.chiariglione.org/contrib/040120merrill01.htm , for a wider discussion.

Making personal copies appear to be considered 'Fair Use' in some jurisdictions but are an explicit limitation in others. (See TRU #2 to make personal copy, http://www.chiariglione.org/contrib/040113dulong01.htm )

Educational use - 'to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.' [K] Also see TRU #54 Right of copying for classroom instruction, http://www.chiariglione.org/contrib/040720merrill03.htm )

Further categories that are listed as fair under United States Code, Title 17, Section 107: [C]

  • criticism

  • comment

  • news reporting

  • teaching

  • scholarship

  • research

It is probably worth reporting some allowed uses that are not 'Fair Use':

  • Consuming the content , reading the book, listening to the music, is not 'Fair Use' it is unregulated use. [F]
  • Selling or lending an authorised reproduction of the content is a 'First Sale' limitation on the rights holders exclusive rights and does not rely on the 'Fair Use' limitation. (See TRU #25 of First Sale, http://www.chiariglione.org/contrib/040119schultz01.htm )

4.

 Nature of TRU

'Fair Use' also goes by the name 'Fair Dealing' in a number of jurisdictions, particularly the United Kingdom [G] and Canada. In this report the term 'Fair Use' is used throughout to refer to this limitation of the copyright holder's exclusive reproduction right.

Legal Support:

To take the United States as an example:

The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant's acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. [D]

The United States Code, Title 17, Section 107, Limitations on exclusive rights: Fair use, gives a good example of laws protecting 'Fair Use':

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. [C]

'No one of the factors is decisive; the court must weigh all the factors and compare them “in the light of the purposes of copyright”.' and 'When judging transformative uses, courts must consider the extent to which the second work simply replaces the first of contributes something additional,' and 'At issue in many transformative use cases is the commerciality of the second work, for a commercial use seems to overtly harm the original work's market potential by depriving it of potential revenue'. [N]

'Fair Use' has both traditional and legal support but the legal support is vague; 'He [the user claiming fair use] doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit. ' [E]

The main international treaties covering 'Fair Use' are:

  • The Berne Convention for the Protection of Literary and Artistic Works (1886), Article 9, allows fair uses 'provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. ' [J]

  • TRIPS, Agreement on Trade-Related Aspects of Intellectual Property Rights [L]

  • World Intellectual Property Organiwation (WIPO) Copyright Treaty [M]

Note: This analysis is by no means exhaustive, at best it is a summary of the issues. Readers are advised to consult the extensive documentation available on this subject a little of which is referenced at the end of this report.

5.

Benefits of TRU

Helps support the copyright aim 'To promote the progress of science and useful arts' by applying another limit to the rights holders exclusive rights.

In addition to the activities described above such as reporting and education 'Fair Use' is also important in preserving competition. For example, directing consumers to the copyrighted content and for the purposes of comparative advertising [A].

Maintaining the copyright balance is one of the most difficult challenges in this area of fair use. Excessive 'fair use' privileges for the consumer could adversely affect the copyright holder's willingness to license or sell their content while, on the other hand, if consumers perceive 'fair use' restrictions to be excessive it may affect their choice of business model.

6.

Possible digital support

Digital support facilitating fair use:

  • Digital devices can facilitate non-infringing reproductions that could dramatically support 'fair uses' of the content. A teacher could easily, quickly, and cheaply make multiple reproductions for all her students to enable study of the work. A reviewer can easily and accurately select a section of text and paste it as a quote in the article where she is reviewing the content.

  • Digital devices could automatically transfer author and rights holder attribution whenever they make non-infringing reproductions for 'Fair Use' and can even transfer Internet locations for further rights information and the source of legal copies.

  • Digital devices could automatically remind users who are making reproductions that they are only legally entitled to do this if they are licensed to do so by the rights holder or are making the reproduction for 'Fair Use' purposes. Digital devices connected to the Internet could then easily direct the user who is unsure of what represents 'Fair Use' to a site detailing the local laws governing 'Fair Use'.

Digital support for regulating fair use:

  • Allow for reproductions that are not authorized by the rights holder. Thus not impinging on an important limitation on the exclusive reproduction right.

In view of the problems in judging if a use is fair:

'An appropriate analysis of fair use requires consideration of four factors (the purpose and character of the use, including whether such use is commercial in nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for or value of the copyrighted work). Evaluating each factor can be a difficult judgment, even for lawyers and judges.' [B]

It is difficult to see how regulating reproduction can be accomplished automatically by a DRM system. At one level, say education, reproducing the entire work might be considered 'fair' at another level reproducing the smallest portion, say a catchphrase or melody, that is then used commercially might well be judged infringing.

  • One area where DRM might help regulate 'Fair Use' that does not rely on making a legal judgement would be to record who is making the reproduction and then this person can be brought to account at a later date if the use is judged not to be fair. This recording action might, however, introduce its own complicating issues such as privacy and reliability of the information recorded.

  • Another function to promote only fair use reproductions would be to remind the user, as mentioned above, and have the user confirm they are claiming 'Fair Use', by clicking an 'I agree' button, before the reproduction is made.

7.

Requirements

DRM devices would have to work in multiple jurisdictions where the definition and interpretation of 'Fair Use' varies.

Any technology that limits the use of the content might be increasing the scope of the copyright holder's rights beyond the level supported by copyright.

8

References

[A] DRM: The Good, the Bad, and the Ugly, John T. Mitchell - http://interactionlaw.com/documentos/DRM_good_bad_ugly.pdf

[B] The Digital Delemma, Intellectual Property in the Information Age - http://www.nap.edu/html/digital_dilemma/ch4.html#FOOT13

[C] United States Code, Title 17, Section 107 - http://www4.law.cornell.edu/uscode/17/107.html

[D] Historical and revision notes house report No. 94-1476 - http://www4.law.cornell.edu/uscode/17/107.notes.html

[E] Lawrence Lessig, Fair Use and Misuse, http://www.lessig.org/blog/archives/002119.shtml

[F] Lawrence Lessig, Testimony on “The Digital Media Consumers’ Rights Act of 2003” , page 7 - http://www.lessig.org/blog/archives/hr107.pdf

[H] For this comment and more history of copyright; see; iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media , page 68 - http://cyber.law.harvard.edu/media/itunes

[G] Fair Dealing, Copyright, Designs and Patents Act 1988 (c. 48) , chapter III - http://www.hmso.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm

[J] Berne Convention - http://www.wipo.int/clea/docs/en/wo/wo001en.htm#P138_25113

[K] Berne Convention, Article 10 - http://www.wipo.int/clea/docs/en/wo/wo001en.htm#P138_25113

[L] TRIPS - http://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm

[M] World Intellectual Property Organiwation (WIPO) Copyright Treaty - http://www.wipo.int/clea/docs/en/wo/wo033en.htm#P84_10623

[N] iTunes: How Copyright, Contract, and Technology Shape the Business of Digital Media , page 72 - http://cyber.law.harvard.edu/media/itunes