COPYCENSE

“Fair use is a crucial exception to ‘intellectual property’ controls. But extensive research, including statistical analysis and scores of firsthand stories from artists, writers, bloggers, and others, shows that many producers of creative works are wary of claiming fair use for fear of getting sued. The result is a serious chilling effect on creative expression and democratic discussion.

“The report suggests the need for strengthening fair use so that it can be an effective tool for anyone who contributes to culture and democratic discourse. The report finds:

• Artists, writers, historians, and filmmakers are burdened by a ‘clearance culture’ that ignores fair use and forces them to seek permission (which may be denied) and pay high license fees in order to use even small amounts of copyrighted or trademarked material.
• The 1998 Digital Millennium Copyright Act (the DMCA) is being used by copyright owners to pressure Internet service providers to take down material from their servers on the mere assertion that it is infringing, with no legal judgment and no consideration of fair use.
• An analysis of 320 letters on the Chilling Effects website, an online repository of threatening cease and desist and ‘take down’ letters, showed that nearly 50% of the letters had the potential to stifle protected speech.”

Marjorie Heins and Tricia Beckles. Will Fair Use Survive? Free Expression in the Age of Copyright Control. (.pdf, 2.12 MB) Free Expression Policy Project. December 2005.

Update:

The Patry Copyright Blog. Brennan Center and Fair Use. Dec. 6, 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.