Fair Use: Be careful what you wish for!

Google image, via GoogleA little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works. The fundamental (even if increasingly questioned) justification for this development is that the copyright monopoly encourages the creation of original works.

This development of copyright has been a very slow process, but two current issues are putting significant pressure on this slow pace. The first is the evolution beyond the static to the plastic described by Johnny Ryan; the second is that the rate of this change is exponentially faster than heretofore. Copyright rules rules created for static texts which at best change slowly are rules that are ill-adapted to faster change and inappropriate to the modern reality of plastic texts. In this new reality, exemplified by the rise of the internet, and as described by Kate O’Sullivan at the seminar, there are at least three key constituencies, rights holders (content creators, such as authors, musicians, publishers and music companies), intermediaries (such as Google, UPC, Boards.ie), and users (you, me, and everybody). Of course, these are not rigid divisions; as Niall O’Riordan pointed out, Google straddles all three constituencies in various ways, and Nick Kelly demonstrated content generated by users means that these users are also creators. Moreover, he quite rightly emphasised that ethics must keep pace with technological change.

Current copyright law affords rights (the copyright) to only one of these three constituencies; and the interests of the other constituencies are recognised only as exceptions to this right. This is a consequence of the history described by Johnny, but is entirely inconsistent with the current reality as it is lived by Niall O’Riordan’s Google, Kate O’Sullivan’s UPC and Darragh Doyle‘s Boards.ie, to say nothing of end users interested in creating their own content. Any rethink should balance the interests of all of these three constituencies. In particular, the interests of all three should be reconceived in terms of rights in each case. At the seminar, Niall argued for EU and Irish law to adopt a Fair Use defence along US lines (even if this is not (pdf) universally seen as sufficient (pdf) in the US context). From the perspective of Google, this is unsurprising. Fair use provided their defence in the Perfect 10 litigation. The closest analogue on this side of the Atlantic has just gone the other way, demonstrating the difference in approach which concerns Google, from a business perspective. And this business argument has been gaining traction. Hence, the Taoiseach has recently called for copyright reform:

Of course, this is very much an opportunity for Europe – with this area being spearheaded by Commissioner Geoghegan Quinn. I believe that the new Digital Media world is a sector where the European Union should try to carve out a lead for itself. In doing so, I think we need to look again at how the Union deals with issues such as intellectual property and particularly the use of copyright material.

The Digital Media sector requires copyright laws that are flexible and suitable for the modern internet environment. I do not believe that the current European copyright legislation is the best way of dealing with the new on-line world, with its myriad of opportunities. As Commission Vice-President Neelie Kroes said recently that ‘we must ensure that copyright serves as a building block and not a stumbling block’.

I think it is time to review our copyright legislation, and examine the balance between the rights holder and the consumer, to ensure that our innovative companies operating in the digital environment are not disadvantaged against competitors. As well as encouraging such a review at European level, the Minister for Enterprise, Trade and Innovation will also be reviewing our domestic application of copyright legislation to identify any changes we should make within the existing EU framework.

Similar calls have been made in the UK (where a commission has been established to review copyright laws) and the EU. This represents an important opportunity, and it must not be lost. Reform is necessary, and it must not be piecemeal, partial, or predicated upon the rights of only one constituency at the expense of the others. We must be sure what we want copyright law to do in the new reality. Any rethink must balance the interests of all constituencies; and if those interests are cast are rights for one constituency, they should be cast as rights for all of them. In particular, therefore, if a fair use doctrine is introduced into EU and Irish law, it should not be cast as a strong exception to copyright, but rather as a strong right which benefits all three constituencies. It will afford protection for intermediaries as well as allowing users to generate transformative content. And if balance is right in copyright, then the ethics of protecting and enforcing copyrights become more acceptable, palatable, and defensible.

Those advocating copyright reform should be careful what they wish for. If what they get is insufficient, it will in fact make things worse, as the opportunity for improvement will have been squandered. As Johnny pointed out, we are in the course of a major paradigm shift from static books to plastic information, and any reform must be equal to this radical change; it requires a wide-ranging and radical restatement of our copyright laws, and not merely incremental amendments to the existing law. Hence, a new EU Fair Use Directive should legislate for a broad right of fair use, stated 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. Existing Irish and European exceptions to copyright, and US examples of fair use, can all be iterated as examples of this new right to fair use, but that right should be far more general and extensive, the better to cope with the ongoing and unfinished transformation of the nature of information.