Defending Fair Use & Copyright Education
In a recent News.com editorial, Copyright Alliance executive director Patrick Ross criticizes the “Defend Fair Use” campaign that the Computer and Communications Industry Association (CCIA) started last month. The Copyright Alliance is another Big Content lobbying outfit whose members include ASCAP, BMI, SESAC, MPAA, RIAA, Microsoft, Time Warner, Viacom and Walt Disney. (Interestingly, the Alliance also has appointed seven “Academic Advisors,” including Lee A. Hollaar, whose book Legal Protection of Digital Information I reviewed favorably in 2002.)
To say the Alliance’s membership favors a restrictive interpretation of the Copyright Act of 1976 may be an understatement. So this may shock some of our readers: there are several points in Ross’ editorial with which we agree.
We agree with Ross it is odd to see the (CCIA) take such a sudden, strong stand in support of fair use, especially on the issue of broadcast copyright warnings. As we mentioned in a recent Clippings, we are unsure how to react to Maura Corbett’s Aug. 27 News.com editorial supporting the CCIA campaign. Specifically, we wrote:
Sure, it [the editorial] says all the right things. But the writer is a partner at a heavy duty Washington, DC public relations firm. In other words, she spins for a living. Our skepticism is rooted in observing a spinner now getting on the “free information” bandwagon — in other words, a spinner unspinning the spin.
Large public relations firms like Corbett’s Qorvis Communications have been central in creating and perpetuating the “piracy” spin, a frame now so ingrained in the American psyche that even news outlets we respect succumb to it. Why, then, should we fail to remain skeptical when a person whose professional life has been devoted to spinning now wants to spin in a way that is more palatable to us (fair use) than a spin that is unpalatable (“piracy”)? Any way you cut the mustard, a spin is a spin: once you enter the cycle — even if it’s for your own benefit — clarity is lost and difficult to recoup. We like to do without spin, even if it’s beneficial to us.
Next, we agree with Ross’ assertion that fair use is not a consumer right. It is well settled that fair use is an affirmative defense to a properly filed allegation of copyright infringement.
Additionally, we agree with Ross that CCIA has offered little “demonstration of harm caused by copyright notices,” although we could counter that in today’s environment, such warnings reinforce notions of copyright protectionism, instead of supporting the premise that copyright is (and always has been) a balance between protection and free public access.
We even can agree, grudgingly, that copyright warnings may not be appropriate as a “fair use public service announcement,” as Ross characterizes CCIA’s attempt to have the FTC decide that the warnings are misleading. Ross is correct when he notes that “describing fair use merely as a ‘consumer right’ can lead otherwise well-meaning individuals to infringe on content and face civil or criminal liabilities.” This could happen because those individuals may only have paid attention to an incomplete disclaimer, and therefore acted in a way that wasn’t allowed under the fair use doctrine.
On the other hand, one also could argue just as plausibly that failure to mention fair use in the copyright warnings cheats well-meaning individuals and organizations out of their statutorily-granted opportunity to use, access, and even reproduce protected works without having to pay for those works, or even ask permission to use them. As we’ve noted consistently in these pages, Sections 110, 109, and 108, at the least, work together with Section 107 to allow use and access without payment or permission. But for argument’s sake, we’ll even concede to Ross that the “fair use public service announcement” may be incomplete.
Finally, and most importantly, we agree with Ross that ”consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use“ and that ”education is the right approach.“ Where we disagree — vehemently — is that organizations like the Copyright Alliance are those that should be providing the ”education.“
We have noticed that over the last two years or so, “copyright education” has become a hot topic. Ross implies that organizations like the Copyright Alliance are the proper carriers of the copyright education mantle when he writes, “Education is the right approach, and one to which the Copyright Alliance is dedicated.” Here’s the problem, though, with the current “copyright education” dialogue: it’s nothing more than another spin. Too often, the ”education“ that the Copyright Alliance and similar organizations provide is incomplete at best, propagandist at worst. (Remember Disney’s use of Penny Proud to deliver copyright ”education“?)
Further, many of the proponents of “copyright education” are, or represent, large copyright portfolio owners that have a vested interest in “teaching” an incomplete, skewed interpretation and analysis of copyright law. To make it plain, “copyright education” provided by an organization that is (or represents) a large copyright portfolio owner is akin to letting the fox inside the hen house. Things could get bloody.
Given the overheated copyright environment we have experienced since October 28, 1998, we posit that no copyright ”education“ for the public is more useful to the public in the long term than copyright ”education“ that transforms the public’s knowledge Copyright Act of 1976 into a proxy for Big Content’s skewed representation of that legislation. But if copyright “education” is to be done — and it should be done — let it be consistent with the Latin term “educere,” which means “to draw out.” When teaching copyright, draw out and present both sides of the Act — rights and exceptions all — and erase any trace of spin and framing.
Patrick Ross. Fair Use Is Not a Consumer Right. News.com. Sept. 6, 2007.
Maura Corbett. Separating Fact From Fiction on Digital Copyrights. News.com. Aug. 27, 2007.
Copycense™: Code + Content. A venture of Seso Group LLC.