Tag Archives: fair use

Fair Use/Fair Dealing Week 2018 Highlights Balance in the Copyright System

*Cross-posted from ARL News*

The fifth annual Fair Use/Fair Dealing Week took place February 26–March 2, 2018, growing to 153 participating organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing worldwide. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, the Center for Democracy & Technology, the Electronic Frontier Foundation, the R Street Institute, and Re:Create. Sixty ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed around the globe by participants in such countries as Australia, Canada, Colombia, Greece, and the United States.

Throughout the week, participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing Week is a time to promote and discuss opportunities presented, share successful stories, and explain these doctrines.

Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and kaleidocycle-making stations and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were 90 news and blog posts, three infographics, three videos, a podcast, and more shared over the course of the week. Below are some highlights.

Fair Use/Fair Dealing Week 2019 will take place February 25–March 1. Plan to participate!

Resources

ARL released the infographic, “Fair Use Promotes the Creation of New Knowledge.”

The Canadian Association of Research Libraries (CARL) released a double-sided infographic—one side pertaining to fair dealing generally and one on fair dealing and education in Canada—“Fair Dealing in Canada: Myths & Facts.” Additionally, CARL launched an expanded website and social media campaign for Fair Dealing Week; the new website includes a compelling testimonials page, highlighting the importance of fair dealing from many different sources.

The International Federation of Library Associations and Institutions (IFLA) released the infographic, “Fair Use and Fair Dealing for Libraries.”

Harvard University released a new comic book, this one on the Authors Guild v. Google case.

Creative Commons Australia produced a Storify recap of its favorite posts on Fair Use/Fair Dealing Week.

Audio/Video

Re:Create released a new episode of its Copy This Podcast, “Copying is Human Nature,” which features Laura Quilter, copyright and information policy librarian at University of Massachusetts Amherst.

The Association of College & Research Libraries (ACRL) released a recording of its webinar with Carla Myers, scholarly communication coordinator at Miami University Libraries in Ohio, “Can’t You Just Say Yes? Answering Copyright Questions about Fair Use for Patrons.”

Massachusetts Institute for Technology created a printable fair use kaleidocycle with video instructions on how to create it.

University of Winnipeg released a Fair Dealing Week video.

University of Lethbridge posted a video about “Fair Dealing in the Classroom.”

News/Blog Posts

The Center for Democracy & Technology posted a clever “conversation” about fair use entirely made up of quotations from other papers, statements, court opinions and more, entitled “I Didn’t Write This Conversation about Fair Use.”

R Street Institute posted, “The Creative Side of R Street,” illustrated with over a dozen GIFs.

There were also several posts related to fair use and trade agreements, including one by attorney Jonathan Band; one by Sean Flynn, associate director for the Program on Information Justice and Intellectual Property at American University Washington College of Law; and one by Timothy Vollmer, senior manager of public policy at Creative Commons.

Here’s an interview with copyright expert Peter Jaszi, which includes a question about the current work on a Code of Best Practices in Fair Use for Software Preservation. The National Library of Medicine’s blog post covers a range of relevant fair use issues and also references the software preservation project.

Aligning with ARL’s infographic theme for 2018, there were quite a few posts about fair use and user-generated content or new knowledge, including the University of San Francisco’s post on fan fiction; University of Virginia’s event on “The State of the Remix @UVA;” a post on the Copyright at Harvard Library blog featuring mash-up videos and entitled “Fair Use and User Generated Content;” Re:Create’s Creator Profile featuring Sarah Loch, a fanfiction writer; the Organization for Transformative Works discussion of the Copy Me project with two creators interested in fan works; and this post by Jonathan Band about the musical Something Rotten.

The Authors Alliance posted several times during the week, including an updated Fair Use FAQ and an announcement of the print release of the guide to Fair Use for Nonfiction Authors. The Center for Media and Social Impact also had several blog posts throughout the week.

In Canada, University of Toronto law professor Ariel Katz shared a draft of his forthcoming book chapter, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?” Michael Geist, law professor at University of Ottawa, posted each day of the week.

Fair Use/Fair Dealing Week 2018: Day 5 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Massachusetts Institute of Technology, Make a Fair Use Kaleidocycle

Infographics

IFLA, Fair Use and Fair Dealing for Libraries

Blog Posts

Angel Antkers & Susan Miller on Authors Alliance blog, “Fair Use and the Digital Millennium Copyright Act” cross posted on Colorado Law Samuelson-Glushko Technology Law & Policy Clinic

Australia Digital Alliance, “It’s an important Fair Use/Fair Dealing Week for Australia

Canadian Association of Research Libraries, “Fair Dealing Week 2018 Wrap-Up

Krista Cox on ARL Policy Notes, “Fair Use and Captioning for Those Who Are Hearing Impaired

Michael Geist, “Fair Dealing and the Right to Read: The Case of Blacklock’s Reporter v. Canada (Attorney General)

Anne Gilliland on Scholarly Communications Office Intersections, “Grateful for Fair Use: Combining Text and Images

IP Quail, “Fair Use/Fair Dealing

Colleen Lyon on Open Access at UT, “Fair Use Wrap Up

Carla S. Myers on Copyright at Harvard Library, “Day 5: Fair Use and Course Reserves: Fact and Fiction

Open Library Greece, “Fair Day #fairuseweek 2018: February 26-March 2

Claudia Rebaza on the Organization for Transformative Works, “OTW Guest Post: Ioana Pelebatai & Alex Lungu

Katharine Trendacosta on the Electronic Frontier Foundation Deeplinks, “Fair Use Protects So Much More Than Many Realize

Fair Use and Captioning for Those Who are Hearing Impaired

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Under the Digital Millennium Copyright Act (DMCA), proponents must file for an exemption every three years to allow for the circumvention of technological protection measures (TPMs) to do things that are otherwise completely lawful under copyright. For example, groups representing those who are visually impaired must ask for the right to circumvent TPMs in order to enable the text-to-speech function on e-readers, even though they do not have to ask for permission to create accessible format copy works for hard copy materials. Even if the use is clearly a fair use, because of ambiguity in the text of the DMCA, individuals or groups must request exemptions for non-infringing uses.

ARL, as part of the Library Copyright Alliance (LCA), is consistently involved in the triennial rulemaking process. Among other petitions, LCA joined in a request to allow for circumvention to create accessible formats of motion pictures to those with disabilities, included through captions and audio descriptions.

Recently, rightsholders submitted opposition to exemption requests and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) oppose the exemption for captioning.

The MPAA argues against captioning qualifying as a fair use. In doing so, the MPAA relies on the Register of Copyright’s conclusion in the 2012 rulemaking process that, “neither Sony-Betamax nor the Copyright Act’s legislative history suggests a rule that all reproduction, adaptation and distribution for the purpose of accessibility is fair use.” The MPAA also criticizes the citation of Authors Guild v. HathiTrust as authority favoring a fair use determination.

The MPAA claims that HathiTrust is not applicable because HathiTrust was making text accessible for people that have print disabilities rather than hearing disabilities:

In HathiTrust, defendants were, among other things, making “text-to-speech” versions of literary works so that they would be accessible to the print disabled. Altering motion pictures is a significantly different undertaking, the result of which is likely a derivative work that involves a creative interpretation of the underlying work. Thus, the proponent’s reliance on HathiTrust is misplaced.

While it is true that the facts in HathiTrust involved accessible formats for those with print disabilities rather than those with hearing impairments, the decision in HathiTrust is still highly relevant. Ultimately, the purpose in creating an accessible format work for someone who is visually impaired and an accessible format work for someone who is hearing impaired is the same: to allow someone with a disability to have access to information and culture. Without accessible formats, those with hearing impairments—just as those with visual impairments—would lack access. Indeed, the court in HathiTrust cites the Supreme Court case, Sony Corp. v. Universal City Studios for the proposition that creating an accessible format work for the convenience of a person with a visual disability does not require anything more than the purpose of entertaining or informing to render the use fair.

Creation of captions for those with hearing impairments is clearly analogous to the creation of a Braille or audio format for someone with a visual impairment. It’s unfortunate that rightholders would argue against accessibility for the hearing impaired as a fair use. Without available captions, those who are deaf or hearing impaired do not have equal access to information.

Fair Use/Fair Dealing Week 2018: Day 4 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL, Webcast Archive of ACRL Presents: “Can’t you just say Yes?” Answering Copyright Questions About Fair Use for Patrons

University of Lethbridge Library, “Fair Dealing in the Classroom

Blog Posts

Authors Alliance, “Revisiting Georgia State: Fair Use and Academic Incentives

Jonathan Band on ARL Policy Notes, “Can’t Get Away From Fair Use

Gabrielle Barr, Christie Moffatt and Rebecca Goodwin on NLM Musings From the Mezzanine, “NLM Celebrates Fair Use Week

Lindsay Boyd on Canadian Alliance of Student Associations, “Fair Dealing in Education: A Firm Foundation Supporting Canadian Educational Content

Brandon Butler on The Taper, “How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

Krista L. Cox on Above the Law, “Celebrating Fair Use: Interview with Peter Jaszi” cross posted, in part, to ARL Policy Notes

Creative Commons Australia, “Storify: 2018 Fair Use Week Recap: useful for “aus” to think about

Sean Flynn on InfoJustice, “Comments to the Mexican Senate on Copyright Provisions in the NAFTA Renegotiation

Michael Geist, “Fair Dealing Support for News Reporting and Public Debate: The Case of Warman and National Post v. Fournier

Kevin Gunn on Catholic University of America University Libraries News and Events, “Fair Use Week 2018

Michael Lemley on Organization for Transformative Works, “Fanworks, Fair Use and Fair Dealing

Amy Manns on DeSales University News, “On Display at Trexler Library: Fair Use Week

Re:Create, “Creator Profile: Sarah Loch, Fanfiction Writer

University of Manitoba Health Sciences Libraries News, “Fair Dealing Questions? Ask the Copyright Office!

Micah Zeller on Washington University in St. Louis Scholarly Communication, “Fair Use and WashU: Part 2

Can’t Get Away From Fair Use

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

Copyright owners accuse library advocates of having fair use on the brain, but the truth is that we just can’t get away from fair use. Over Presidents’ Day Weekend, I saw the touring production of Something Rotten with my son at the National Theatre in Washington DC. I knew nothing about the show before I went, other than that my wife thought I would love it, even though I don’t care for musicals; and that the title was an allusion to the line in Shakespeare’s Hamlet that “Something is rotten in the State of Denmark.”

Well I did love it, and not only because it was very entertaining. It also demonstrated the importance of the fair use and the public domain to new creative expression. The show concerns the efforts of two brothers in London in the 1590s struggling to compete with the popularity of William Shakespeare. Desperate to find an idea for a new play, one brother consults a soothsayer to learn what sorts of plays would be popular in the future, and what would be the subject of Shakespeare’s next hit. The soothsayer informs him that audiences will love musicals, and that Shakespeare’s next play will involve eggs, ghosts, and danish.

The brother is skeptical about the concept of musicals—why would actors suddenly start to sing? This skepticism leads to an eight-minute song that contains lyrics, melodies, and visual references to at least twenty musicals, including Avenue Q, The Fantasticks, Les Miserables, Fascinating Rhythm, West Side Story, Music Man, Seussical, South Pacific, Chicago, Evita, Rent, Jesus Christ Superstar, Sunday in the Park with George, Annie, Guys & Dolls, Sweet Charity, Hello Dolly, Cats, Sweeny Todd, and A Chorus Line. The musical the brothers ultimately produce (Omlette: the Musical) contains lines or melodies from Fiddler on the Roof, The Producers, Phantom of the Opera, Sound of Music, Mary Poppins, and Oklahoma.

Moreover, Something Rotten contains numerous quotations and characters from Hamlet, Romeo and Juliet, The Merchant of Venice, A Midsummer Night’s Dream, and Henry IV.

In short, without fair use and copyright term, Something Rotten could not have been created and produced. And it wasn’t exactly a fringe production. It had a run of 742 performances on Broadway, and it was nominated for ten Tony Awards. The actor who played Shakespeare, Christian Borle, won the Tony for best featured actor in a musical.

Existing expression is the raw material for new expression. And for new expression to be fresh and topical, authors must be able to use works more recent than Shakespeare’s.

Fair Use/Fair Dealing Week 2018: Day 2 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts:

ReCreate: Copy This Podcast Episode 12: Copying is Human Nature

Blog Posts:

Rachel Appel and Gabriel Galson on Scholarly Communication @ Temple, “The Importance of Fair Use and Standardized Rights Statements for Digital Cultural Heritage Institutions” cross-posted to PA Digital

Ashland University Library News, “Fair Use Week: Infographic

Jonathan Band on Disruptive Competition Project, “The Second Circuit’s Fair and Balanced Fair Use Decision in Fox News v. TVEyes

Krista Cox on Copyright at Harvard Library, “Day 2: Fair Use and User Generated Content” cross-posted to ARL Policy Notes.

Lael Ensor-Bennett on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Tyler Garling on The Taper, “Guest Blog: Student Remixer Tyler Garling on the Cultural Shift (Back) Toward Sharing

Michael Geist, “Why Far Dealing Benefits Creators: The Case of a Room Full of Spoons

Anne Gillaland on University of North Carolina Scholarly Communications Office Intersections, “What Does it Mean to Be Transformative

Julie Grob on UH Libraries News, “Fair Use Week: Drake’s Sampling Ruled Transformative

Ariel Katz, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?”

Amanda Levendowski on Authors Alliance, “Fair Use for Fairer AI

Stephanie Lewin-Lane on UH Libraries News, “Fair Use Week: Preservation Copies of Sound Recordings

Colleen Lyon on Open Access at UT, “Fair Use for Nonfiction Authors

Marlo MacKay on The LibVine, “Fair Dealing Week: Fair Dealing, Myths & Facts

Emily O’Connell on the CMSi blog, “Rethinking Fair Use: Rebekah Modrak and the Art of Creative Critique

Emily O’Connell on the CMSi blog, “Happy Fair Use Week! And Where to Find the Good Stuff

University of Manitoba, “Be fair in using copyrighted materials! The University recognizes Fair Dealing Week

Fair Use and User Generated Content

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from Copyright at Harvard Library*

In keeping with tradition, ARL has released a new infographic in celebration of Fair Use/Fair Dealing Week.  While I’m a big fan of all of our past infographics (Fair Use FundamentalsFair Use in the Day in the Life of College Student and Fair Use Myths and Facts), here’s what I love about this year’s infographic, Fair Use Promotes the Creation of New Knowledge: it reminds us that fair use isn’t just about someone using existing information, but about relying on it for new creations. Fair use facilitates all types of new knowledge, from news reporting to the creation of innovative technological products, to scholarship.

Screenshot 2018-02-25 19.08.46

In the digital environment, in particular, creating new high-quality content and disseminating it widely has become easier.  User-generated content is highly popular and often relies on fair use.  While the Fair Use Promotes the Creation of New Knowledgeinfographic contains several different examples of the type of new information and culture that fair use enables, I want to highlight some great examples of user-generated content, such as fan fiction, remix songs and mashup videos.

One of my favorite examples is this video by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.”  The clips are from a very diverse set of movies, ranging from old musicals like Singin’ in the Rain and the King and I, to classics like The Red Shoes and Babes in Arms, to more recent Academy Award Best Picture Winners like Slumdog Millionaire and Silver Linings Playbook, to 1990s comedies like Mrs. Doubtfire and The Mask.  The mashup is highly creative and what I found to be particularly impressive was that it uses so many movies that have nothing to do with dancing and that the user/creator didn’t speed or slow down any of the clips to fit the rhythm of the song.

Here’s another excellent mashup, entitled “Mean Disney Girls,” which uses dialogue from the 2004 movie Mean Girls and merges it with clips featuring Disney princesses from CinderellaSleeping BeautyThe Little Mermaid and others.  In an example of mashups that go viral, this video has more than 13 million views on YouTube.

User generated content is so popular on YouTube that back in 2015, a Google blog post noted that, “More than 400 hours of video are uploaded to YouTube every minute,” including videos relying on fair use.  Because content on the web is often the subject of DMCA takedowns, even if the work is fair use, that same blog post announced:

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.  We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.  With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

While the Ninth Circuit has found that copyright holders must consider fair use in issuing takedown notices in Lenz v. Universal Music Corp., also known as the “dancing baby” case, with automated takedown notices being issued by corporate rightholders, this many not always be the case.

This year, during Fair Use/Fair Dealing Week, I’m celebrating all of the great new works we benefit from thanks to fair use.

Fair Use/Fair Dealing Week 2018: Day 1 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 1 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Infographic: Fair Use Promotes the Creation of New Knowledge

Infographic: Fair Dealing in Canada Myths & Facts/Fair Dealing in Education Myths & Facts

Fair Dealing Testimonials on Fair Dealing Canada 

Videos:

University of Winnipeg Library, “Fair Dealing Week

Contests:

University of Waterloo, Create-your-own-meme contest

Blog Posts:

Stan Adams on Center for Democracy and Technology Blog, “I Didn’t Write This Conversation About Fair Use

Berkman Klein Center for Internet & Society, “Fair Use/Fair Dealing Week – Week of Feb 26, 2018!

Hallie Brodie on The Quad, “Consider This: Fair Dealing Under Review

Jonathan Band on ARL Policy Notes, “Balanced Copyright in CPTPP and NAFTA

Brandon Butler on The Taper, “Fair Use Week 2018 Kickoff: Getting Ready for ‘The State of the Remix @UVA’ by Revisiting the Renaissance

Carnegie Mellon University Libraries, “Fair Use Week 2018

Canadian Association of Research Libraries, “CARL Launches Expanded Website and Social Media Campaign for Fair Dealing Week 2018” cross posted on the Quebec Library Association

Jessica Clark on George Mason University Libraries News, “Fair Use/Fair Dealing Week 2018

Krista Cox on ARL Policy Notes, “Fair Use Promotes Creation of New Knowledge

Katherine Dunn on MIT Libraries News & Events, “Happy Fair Use Week 2018

Lael Ensor-Bennet on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Vince Frieden on Miami University Libraries Blog, “University Libraries Recognize Fair Use Week Feb. 26- March 2

Christine Fruin on ATLA Newsletter, “The SCOOP: Fair Use Week

Michael Geist, “Fair Dealing Fake News: When Seeking a Refund Arising from Copyright Over-Payments Becomes a ‘Legal Attack on Writers’

Anne Gilliland on University of North Carolina Scholarly Communications Office Intersections, “Fair Use Week 2018: Creation and Communication in the Academy”

Teresa Hackett on the EIFL blog, “EIFL Celebrates Fair Use/Fair Dealing Week

Harvard Library, “Fair Use Week Returns

Library at Bryant University, “‘Fair Use/Fair Dealing Week’ Starts Now! How Can You Participate?

Colleen Lyon on Open Access at UT Austin, “It’s Fair Use Week!

Marlo MacKay on The Libvine, “Fair Dealing Week: What Is Fair Dealing?”

Matthew on In the Know @ the Bentley Library, “Celebrate Fair Use Week

MIT Libraries Scholarly Publishing, “Spotlight: Happy Fair Use Week 2018

Emily O’Connell on the CMSi blog, “Fair Use in Film Courses: Broderick Fox on Empowering Creators

Meera Nair on Fair Duty, “Fair Dealing Week 2018

New Media Rights, “Fair Use Week 2018 Reminds Us Why Fair Use is Worth Protecting

Judy Rabinowitz on What’s New @HHSL, “And now, in honor of Fair Use Week, a poem

Charlotte Roh on Gleeson Gleanings, “Fan Fiction and Fair Use/Fair Dealing Week 2018

Kerry Sheehan on Electronic Frontier Foundation, “Fair Use as Consumer Protection

Simon Fraser University Library, “Happy Fair Dealing Week!

University of Lethbridge, “Fair Dealing Week, February 26-March 2, 2018

Jane Thaler and Melissa Cantrell on University of Colorado Boulder, “A ‘Fair’ to Remember

Visual Resources Association, “Boon or Bane? The Four Fair Use Factors vs. The 10% Rule

Timothy Vollmer in InfoJustice, “’Free Trade’ Agreements Would Be More Fair With Fair Use at Their Core

Balanced Copyright in CPTPP and NAFTA

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

The “balanced copyright” provision of the original Trans-Pacific Partnership (“TPP”) Agreement has been included in the successor agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), negotiated by the remaining TPP parties after the United States pulled out of the TPP. However, it appears that the U.S. government is opposing the provision’s inclusion in the North American Free Trade Agreement (“NAFTA”), currently under renegotiation. This is ironic given that the United States originally proposed inclusion of the provision, based on the U.S. fair use doctrine, in TPP. Thus, the eleven parties to the CPTPP now appear more dedicated to a U.S. legal principle than the United States itself.

TPP

Article 18.66 of the IP chapter of the TPP required each party to “endeavor to achieve an appropriate balance in its copyright and related rights systems.” This balance was to be achieved by means of limitations and exceptions that gave “due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise disabled.”

The United States originally proposed this language during the July 2012 round of TPP negotiations in San Diego, CA. (See here for more detailed discussion of the development of Article 18.66.) The provision’s list of legitimate purposes was based on the list of purposes in 17 U.S.C. 107, which codifies the fair use doctrine. The U.S. explained that “[t]hese principles are critical aspects of the U.S. copyright system, and appear in both our law and jurisprudence. The balance sought by the U.S. TPP proposal recognizes and promotes respect for the important interests of individuals, businesses, and institutions who rely on appropriate exceptions and limitations in the TPP region.”

Twelve countries, including the United States, signed the TPP on February 4, 2016. On January 23, 2017, the day after his inauguration, President Trump withdrew from the TPP, which had not yet come into effect.

CPTPP

The remaining eleven TPP parties—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam–agreed on a revised TPP on January 23, 2018. The new agreement, named the CPTPP, is largely the same as the TPP, except that the parties decided to suspend 20 provisions that had been demanded by the United States in the TPP. With respect to copyright, the parties suspended the provisions relating to copyright term, circumvention of technological protection measures, and safe harbors for Internet service providers. Significantly, the parties did not suspend the balanced copyright provision, even though it had originally been proposed by the United States. Thus, the eleven CPTPP countries have obligated themselves the endeavor to achieve an appropriate balance in the copyright systems.

NAFTA

Once President Trump announced that the United States would renegotiate NAFTA, it was assumed that the United States would use the TPP IP chapter as the template for the new NAFTA IP chapter since Mexico, Canada, and the United States had already agreed to that language in TPP and the TPP IP chapter reflected so many of the U.S. demands. Nonetheless, the copyright industries launched a lobbying campaign against incorporation of the “balanced copyright” and ISP safe harbor provisions.

The Copyright Alliance, for example, asserted that while it “believe[s] in a ‘balanced’ copyright system,” the “concept of ‘balance’ is actively being twisted and used as a vehicle for weakening copyright protections….” For this reason, it is “skeptical about including this type of language in a trade agreement.” Similarly, the Recording Industry Association of America (“RIAA”) argued that “efforts to export the American fair use exception are particularly troubling.” Accordingly, RIAA believed that the United States should not support “broad provisions that could diminish, or otherwise generate legal uncertainty with respect to, the three-step test.”

However, there is no evidence that the concept of balance is being twisted or that the export of fair use would lead to uncertainty or the weakening of copyright protection in a troubling manner. The example of Israel is instructive. Israel adopted a fair use provisions similar to 17 U.S.C. 107 in 2007. Since then, Israeli courts have applied fair use stringently. They have imposed a fifth factor not included in the statute: the defendant must provide attribution to the author. Moreover, Israeli courts have found fair use at a lower rate than U.S. courts. Thus, the Israeli courts’ implementation of fair use demonstrates that U.S. copyright owners have nothing to fear from the export of fair use. In any event, TPP article 18.66 does not require adoption of a fair use provision; it simply imposes an obligation to endeavor to achieve balance.

Balance as a Traditional Contour of U.S. Copyright Law

An even more unreasonable objection to a balanced copyright provision in NAFTA appeared in a letter to U.S. Trade Representative Robert Lighthizer, by twenty-five conservative organizations. These groups, which have no knowledge of the copyright system, urged the USTR “to reject calls for NAFTA to include ‘users’ rights,’ which was manifested in the Obama-era concept of copyright ‘balance.’”

Contrary to the letter’s suggestion, copyright balance is not an “Obama-era” concept. Rather, it is a principle the U.S. Supreme Court and courts of appeals articulated repeatedly long before the Obama Administration.

Thus, the Supreme Court in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989), observed that the Constitution’s intellectual property clause “itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’”

In Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984), the Supreme Court stated that “Congress has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or inventors in order to give the public appropriate access to their work product…[T]his task involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other….”

In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 928 (2005), the Supreme Court recognized that the copyright law maintained a “balance between the respective values of supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.” The Court noted that “[t]he more artistic protection is favored, the more technological innovation may be discouraged; the administration of copyright law is an exercise in managing the trade-off.” Id.

The federal courts of appeals likewise have recognized the concept of copyright balance. The Second Circuit stated that “the copyright law seeks to establish a delicate equilibrium. On the one hand, it affords protection to authors as an incentive to create, and, on the other hand, it must appropriately limit the extent of that protection so as to avoid the effects of monopolistic stagnation.” Computer Assocs. Int’l, Inc., v. Altai, Inc., 982 F.2d 693, 696 (2d Cir. 1992).

Similarly, the Fifth Circuit wrote that in the Copyright Act “Congress balanced the competing concerns of providing incentive to authors to create and of fostering competition in such creativity.” Kern River Gas Transmission Co. v. Coastal Corp., 899 F.2d 1458, 1463 (5th Cir. 1990).

The Federal Circuit, referring to the Digital Millennium Copyright Act, a statute criticized in the December 18 letter, noted that in enacting the DMCA, “Congress attempted to balance the legitimate interests of copyright owners with those of consumers of copyrighted products.” Chamberlain Group v. Skylink Tech., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The court observed that under the plaintiff’s interpretation, which would have “eliminated all balance and granted copyright owners carte blanche authority to preclude all use, Congressional intent would remain unrealized.” Id.

It is curious that a group of conservative organizations would disparage users’ rights in favor of what the Supreme Court has described as a government granted monopoly. It is even more curious that these organizations would suggest that exceptions and limitations such as fair use “should be contracting, not expanding, in the digital age.” After all, the Supreme Court in Eldred v. Ashcroft, 537 U.S. 186, 219 (2003), explained that fair use is one of the “traditional contours of copyright protection that acts as “a built-in First Amendment accommodation[].” Surely these groups support the First Amendment—and that is what the concept of balanced copyright is all about.

Fair Use Promotes Creation of New Knowledge

Happy Fair Use/Fair Dealing Week!

To celebrate Fair Use Week 2018, ARL has released a new infographic in keeping with the tradition of releasing a new fair use infographic each year. While we often celebrate fair use in terms of the ways in which a user relies on existing information (such as the 2016 infographic, Fair Use in a Day in the Life of a College Student), this year we’re celebrating how fair use  contributes to the creation of new knowledge.

For example, fair use promotes:

  • More accurate news reporting
  • Creation of innovative products, such as searchable databases
  • New art, including appropriation art
  • New content, such as user-generated content like fan fiction, remix songs and mash-up videos
  • Better documentary information, including in films or websites
  • Innovative ways to share information
  • New interoperable software, made possible through reverse engineering
  • Contributions to new scholarship

Screenshot 2018-02-25 19.08.46

This year’s infographic, Fair Use Promotes the Creation of New Knowledge is available here, along with infographics from previous years. You can also check out lots of great content and resources on the Fair Use/Fair Dealing Week website.