Fair Use – Recalibrating the balance in Fair Dealing

'Scales of Justice', a public domain IP image, via wikipediaThis is a call to arms; or at least, a call for legislation which would radically recast EU copyright law.

Intellectual property law and policy are all about innovation, both encouraging it and protecting its fruits. But these are potentially opposing, perhaps even incompatible, goals: if we reward one innovator with a monopoly over the fruits of the innovation, prohibiting others’ use of those fruits, then we risk preventing the next round of innovation. The challenge to law-makers is to strike the an appropriate balance between reward and innovation, by pitching the length of the monopoly at the right level, both in the breadth of its coverage and the length of its term, beyond which others might also use it.

The story of copyright provides a good example of this dilemma. It begins with the fourteen year protection for authors provided in the Statute of Anne, 1709/1710 (fascimile | transcript | wikipedia) in England and in the Copyright Act, 1790 (pdf | wikipedia) in the US (in both cases, the fourteen year term was renewable once). Thereafter, more kinds of work were brought within its protection; and the term was progressively expanded, so that it now covers the life of the author plus seventy years (US | UK | EU | Ireland). That is a story of increasing monopoly. Balancing this progressive expansion of the reward, there ought to be something to encourage new developments by further innovators. But there has been precious little of that. The codification of the fair use doctrine in US copyright law in 1976 (17 USC 107, via Cornell and Findlaw | Copycense | eff | Fair Use Network | Stanford | US Copyright Office | wikipedia) is about the only thing that stands on that side of the line. And the fair dealing exception in other common law countries (such as Ireland and the UK) is considerably narrower and even more grudging (Michael Geist provides a topical example of the limited Canadian protection for fair dealing here). To keep the balance right, every extension of the reach of copyright protection should have been accompanied by a concommitant flexibility in the exceptions, such as fair use in the US and fair dealing elsewhere. By and large, however, that hasn’t happened. So the relationship has become progressively unbalanced and is now increasingly tilted towards the copyright holder.

Nowhere is this more clear than online. The internet, that hotbed of innovation, has given rise to many modern copyright controversies, not only infringements such as napster (A&M Records v Napster 239 F.3d 1004 (9th Cir. 2001); decision; wikipedia here and here) and grokster (MGM Studios, Inc v Grokster Ltd 545 US 913 (2005); decision; wikipedia here and here | recent discussion here), but also less straightforward and still undecided issues such as google books (which I have already discussed here) or Viacom‘s suit against YouTube (discussed by Daithí here). Whatever about the merits of the individual cases, it is becoming increasingly clear that the internet’s culture of innovation is running squarely into the brick wall of expansive copyright protection, extended online by the Digital Millennium Copyright Act, 1988 in the US (text | wikipedia) and the EU’s copyright policy for the Information Society (monitored here by fipr). Developments on the internet are demonstrating by the minute that the balance has tipped too far in favour of the monopoly reward, and too far away from encouraging innovation. In particular, the US fair use doctrine is too narrow, and the fair dealing exception in other common law countries is quite frankly unfair. As the recent litigation by the Joyce Estate against Carol Schloss demonstrates (background: William Patry; Funferal; Fergus Cassidy. Outcome: Lessig; Concurring Opinions; Fergus Cassidy’s messages on this; House of Commons; Slaw; Stanford CIS, here and here; see also M Rimmer >(2005) 2:3 SCRIPT-ed 345 (pdf); R Anthony Reese 85 Texas Law Review 585 (2007) (pdf)), they barely work offline. (For examples on this side of the Atlantic, see Sweeney v NUI Cork T/A Cork University Press [2000] IEHC 70 (9 October 2000), Sweeney v MacMillan Publishers [2001] EWHC Ch 460 (22 November 2001), and the Copyright and Related Rights (Amendment) Act, 2004).* Neither can do the work required to maintain an appropriate balance between monopoly and innovation. This is beautifully illustrated in John Naughton’s column in the Observer yesterday: The very model of a modern creative society? I don’t think so (he blogged it on Memex 1.1; commented upon by Daithi on Lex Ferenda).

As a consequence, there are, quite simply, many contexts in which copyright law is inapt for the onine and digital environment, dealing only with very great difficulty with derivative and transformative works (which are not peculiar to the internet, though they are certainly expanding becuase of it, and not just on YouTube), and failing to come to grips with file-sharing and private copying (contrast eff and RIAA; and see William Patry’s exasperation), to say nothing of metatags and links (which are peculiar to the internet, and unclear since Shetland Times v Jonathan Wills [1997] FSR 604 (decision | analysis), and the recent Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 (decision | analysis here and here from Kim Weatherall on LawFont) has done little to resolve that uncertainty). In these kinds of cases, the copyright owner suffers no harm to the work’s market, and yet – as the law now stands – can, in such circumstances, successfully complain of infringement (more so in the EU and the non-US common law world, only slightly less so in the US). What this means is that the rewards of monopoly go much further than the work’s market, and therefore much further than the rationale for the monopoly would seem to justify.

Several favourable opportunities to recalibrate this balance have recently been missed. For example, in Australia, Schedule 6 of the Copyright Amendment Act 2006 partially widened some of copyright’s exceptions, but did not effect any significant adjustment of the (im)balance between monopoly and innovation. Similarly, in the UK, the Gowers Review of Intellectual Property, though it did decline to recommend an extension to the term of copyright in music sound recording, nevertheless only nibbled at the edges of the monopoly more generally (for example, proposing a limited ‘private copying’ exception for consumers’ personal use; similarly for creative, transformative or derivative works; and enabling access to content for libraries and education establishments). Most recently, in the US, the proposals for a Freedom And Innovation Revitalizing U.S. Entrepreneurship Act of 2007 [FAIR USE Act, 2007: geddit?] (hat tip, a tremendous post on House of Commons; for the text of the Bill, see here from eff) is a rather piecemeal and unsystematic set of partial measures, it is a big first step in the right direction, and it might yet provide the context for a discussion of the pious aims stated in its preamble (to promote innovation, to encourage the introduction of new technology, to enhance library preservation efforts, and to protect the fair use rights of consumers). All of the liberalisations at the edges in these various developments are welcome, to be sure; but none substantially addresses the core of the problem.

Early last month, Daithi called on

interested parties (interested being those (bloggers or not) with an interest in the legal and policy elements of the Internet, including copyright, digital media, network regulation, etc – i.e. taking the wide look that Lessig takes, or wider if necessary) to join in. Each person will be responsible for one proposal, of her or his choice. They can be essays, bullet points, draft legislation, powerpoint-style presentations, audio or video podcasts – whatever.

I volunteered (twice!). It should be obvious by now that my suggestion for a law sorely in need of reform relates to the fair dealing exception to copyright at Irish law. But since most of Ireland’s copyright law and policy is now being set in the EU, my suggestion is really one for EU level. A short term solution would be the wholesale adoption of a US-style fair use doctrine in EU copyright law (Israel is about to do something like that; there is a little history of Israeli copyright here). A better solution would be to take that as a starting point for a thoroughgoing re-examination of the current balance between reward and innovation.

First, this rebalancing should be achived by an EU Fair Use Directive, as a positive policy commitment in its own right, and not merely as measure amending previous directives in a piecemeal fashion. Second, the directive should legislate for a broad right of fair use (and not merely as an exception, exemption, license, or privilege as William Patry explains those terms here). It is important to state this new fair use doctrine positively as a right, so that it will be interpreted expansively, rather than merely negatively as a set of exceptions, which will be liable to be interpreted narrowly. Third, whilst copyright in the original work should continue to susbsist, fair use should nevertheless cover as a minimum personal, non-commercial uses which do not impact upon the original work’s market (provided credit is given where appropriate). Fourth, the various elements of fair use in US law, fair dealing in Irish law, and emerging suggestions in Gowers, the FAIR USE proposals, and so on, ought to be iterated as a partial list of examples of that right. And this list should be stated to be open to analogical development by the courts as new situations develop. Fifth, the copyright monopoly should not be unitary, but should instead be graduated by the new fair use right in various ways. For example, it should provide greater protection against commercial infrigement, but less against private use. Moreover, even in the commercial sphere, fair use should provide for a robust range of compulsory licences which reward the original work without stifling further innovation. And, as copyright terms have been and are being increasingly extended, it could provide such greater protection at the beginning of the period, but ought to become subject to an expanding range of fair use rights, exceptions and exemptions over time.

Of course, these are but the broad contours of a policy. The details and drafting remain to be worked out. But there is a need for something like this. Indeed, once it is adopted on the EU level, it would need to be adopted at the level of WIPO and the Berne Convention. The EU should therefore show leadership as the rest of the world grapples with these issues. And the impetus from within the EU should come from Ireland. It is a more than appropriate policy issue for our political parties to take up as they face into the forthcoming election, and on which to work once in government.

A call to arms has been issued. Who will meet the challenge?

* Update: The links to the Joyce Estate litigation have been updated at various stages since this post was first written, but I have merged the more-recently discovered links in with the others for the sake of completeness.

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