Fair Use Rights

Creative Commons frownIntellectual property, copyright, creative commons, copyleft, open access… These are all terms high on the science and other agenda these days. For example, public-funded scientists the world over are calling for research results to be available free to them and their peers for the public good and for the good of scientific advancement itself. Librarians likewise are also interested in the fullest dissemination and sharing of knowledge and information, while user-creators and the new breed of citizen journalists that are the result of the Internet Age are also more liberal in their outlook regarding the proprietary nature of creative works.

On the other hand, traditional publishers, database disseminators, and the commercial creative industry consider the investment they put into the creation and distribution of works as a basis for the right to charge readers and users and for profit-making. Meanwhile, adventurous organisations that are not necessarily beholden to shareholders, to other commercial concerns, and to learned society memberships, are experimenting with alternative business models with varying degrees of success.

One aspect of copyright that arises repeatedly in any discussion is what is considered fair use and what kind of usage warrants a cease & desist order from the owner of copyright in their works.

Now, Warren Chik, an Assistant Professor of Law at Singapore Management University, is calling for a reinvention of the general and flexible fair use doctrine through the simple powerful elevation of its legal status from a legal exception to that of a legal right.

Writing in the International Journal of Private Law, 2008, 1, 157-210, Chik explains that it is the relatively recent emergence of information technology and its impact on the duplication and dissemination of creative works – whether it is a photograph, music file, digitised book, or other creative work – that has led to a strengthening of the copyright regime to the extent that it has introduced “a state of disequilibrium into the delicate equation of balance that underlies the international copyright regime”.

Copyright holders have lobbied for their interests and sought legal extension to the protection over “their” creative works. But, the law in several countries has undergone a knee-jerk reaction that is not necessarily to the benefit of the actual creator of the copyright work or of the user. Chik summarises the impact this has had quite succinctly:

The speedy, overzealous and untested manner in which the legal response has taken has resulted in overcompensation such that the interests of individuals and society have been compromised to an unacceptable degree.

For some forms of creative works, such as music and videos, there has emerged a protectionist climate that has led to the creation of double protection in law the form of the digital rights management (DRM) system and anti-circumvention laws that allows copyright owners to prosecute those that attempt to get around such restrictive devices. This, Chik affirms, has “inadvertently caused the displacement of the important fair use exemptions that many consider the last bastion for the protection of civil rights to works.”

Chik points out that this tightening of the laws run counter to the increasing penetration of electronic forms of storage and communication, the borderless nature of the Internet and the invention of enabling technologies such as the so-called “Web 2.0”. This in turn is apparently leading to a general social shift towards more open collaborative creativity, whether in the arts or the sciences, and what he describes as “the rise of a new global consciousness of sharing and participation across national, physical and jurisdictional borders.”

Whether that view is strictly true or not is a different matter. At what scale will those who like to share a few snapshots among strangers or a small-scale collaboration between laboratories realise the need for a more robust approach to their images and data? For example, if you are sharing a few dozen photos you may not see any point in protecting them beyond a creative commons licence, but what happens when you realise you have tens of thousands of saleable photos in storage? Similarly, a nifty chemical reagent that saves a few minutes in a small laboratory each week could take on global significance if it turns out to be relevant to cropping a synthesis in the pharmaceutical industry. Who would not wish to receive full credit and monetary compensation for their creative works in such cases?

Chik proposes not to destroy or even radically overhaul the present copyright regime, instead he endorses a no less significant reinvention of the general and flexible fair use doctrine through the simple powerful elevation of its legal status from a legal exception to that of a legal right, with all the benefits that a legal right entails. This change, he suggests could be widely and rapidly adopted.

Currently, he says, fair use exists formally only as a defence to an action of copyright infringement. But, DRM and other copyright protection threaten this defence and skew the playing field once more in favour of copyright holders. “Fair use should exist in the law as something that one should be able to assert and be protected from being sued for doing,” Chik says.

Such a change will render copyright law more accurately reflective of an electronically interconnected global society and also acknowledge the importance and benefits of enabling technologies and its role in human integration, progress and development.

Chik, W. (2008). Better a sword than a shield: the case for statutory fair use right in place of a defence. International Journal of Private Law, 1(1/2), 157. DOI: 10.1504/IJPL.2008.019438

4 thoughts on “Fair Use Rights”

  1. Copyright is a taking of a public benefit for a private entity. This was put into law in order to increase the public benefit. The idea was that by taking from the public to provide the creator a limited term right to their work (through government intervention) would encourage individuals to invest their time in creating works that would benefit society.

    So the debate is properly about how great the taking from the public should be. It seems to me the current situation is completely corrupt. Many of the actions are taking public benefit to provide to the private entity where no possible public benefit exists. Extending copyright periods of long ago created works, where obviously the public is harmed purely for private benefit. No possible argument can be made that their is a payoff to the public for this taking.

    If you wanted to take such an action and made it only for new work then their could be an argument that now a creator knows they have 100 years of government provided rights and therefore investing more time and effort in their work creates new and better work. I don’t believe this argument but at least it is possible. The current actions though are mainly about large companies using government to take from the public to provide themselves private benefit with no corresponding public benefit.

    Lawrence Lessig is the person who has the best insight in this area, in my opinion: The Value of the Public Domain

    Related: What is Wrong with Copyright Taking Public Good for Private Special InterestsInnovation and Creative Commons

  2. I have read over this view several times and am still not sure what he is proposing. Can someone give me an example of how this would work under the two ways of defining fair use – and this would benefit the consumer and copyright holder?
    What is the problem with publishers wanting to be compensated for their published works? Is downloading music for personal use with out payment justified uner either of the fair use guidelines?
    Who pays for this fair use of creative products? The creator?

  3. Via email

    I don’t think the displacement was inadvertent. Publishers are consciously trying to minimize fair use, just as they are trying to maximize the term of copyright.

    I support what Chik is doing. However, I think that the distinction between fair-use as a defense and fair-use as a right can be overstated – i.e. that in an important sense, it’s already a right. (Take self-defense as an analogy; strictly speaking it’s a defense; but for that very reason it functions as a right.) But that’s a minor quibble; I still support what he’s doing. If his thesis, and yours, is that fair use becomes more important as publishers tilt the traditional copyright balance toward maximalism, then I support that too.

    But I’d go further, as you might guess. We need much more than strengthened fair use; we need to shorten the term of copyright, restore the first-sale doctrine, protect the public domain, punish copyfraud (the false claim of copyright) – and work for open access to royalty-free literature such as peer-reviewed scholarly journal articles.


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