Tag Archives: fair use

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.

Fair Use Industries Contribute $2.8 Trillion to U.S. Economy

The Computer and Communications Industry Association (CCIA) released an updated report on Fair Use in U.S. Economy: Economic Contribution of Industries Relying on Fair Use. The report notes that fair use is vital to a number of industries and contributes significantly to the U.S. economy — $2.8 trillion to the GDP.

Examples of fair use industries include, for example, manufacturers of consumer devices that allow individual copying and recording (such as DVRs), educational institutions, software developers, and Internet search and web hosting providers. These industries have seen dramatic growth in the digital age and “grew at a faster pace than the overall economy.”

In addition to the significant value add to the GDP, fair use industries also employed 18 million workers by 2014, representing 1 in 8 US workers. Additionally, “from 2010 to 2014, the labor productivity of U.S. fair use industries increased by 3.2 percent annually to approximately $155,000 per worker.” Exports rose by 21 percent in that same period to $368 billion in 2014 and “[t]he fair use economy has become a defining aspect of the U.S. trade portfolio.”

In addition to surveying these quantifiable contributions to the U.S. economy, the report explains the importance of fair use to these industries. The full report can be accessed here.

Indeed, fair use is an essential limitation in copyright law, contributing to a variety of purposes including supporting the U.S. economy, education, learning, and the creation of new works. For more on fair use, check out these ARL infographics:

Fair Use/Fair Dealing Week 2017 Highlights Balance in Copyright System

*Cross-posted from ARL news*

The fourth annual Fair Use/Fair Dealing Week took place February 20–24, 2017, growing to 140 organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing. 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, Creative Commons, the Electronic Frontier Foundation, Public Knowledge, the R Street Institute, and Re:Create. Forty-five ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed worldwide, with participants in such countries as Australia, Canada, Colombia, Israel, Korea, the Netherlands, New Zealand, 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 provides a time to promote and discuss the 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 card-making stations, and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were over 100 news and blog posts, 13 videos, 3 infographics, and 2 podcasts shared over the week. Below are some highlights.

Fair Use/Fair Dealing Week 2018 will take place February 26–March 2. Plan to participate!

Resources

The Association of Research Libraries released the infographic, “Fair Use Myths and Facts.”

The University of Waterloo adapted ARL’s infographic for Canada to create, “Fair Dealing Myths and Facts.”

Kyle Courtney, Jackie Roche, and Sarah Searle of Harvard University published the comic book, “Fair Use of Unpublished Works.”

Video/Audio

Three ARL libraries created videos celebrating fair use, including Harvard University, Duke University, and the University of Virginia. Additionally, Brigham Young University created a video encouraging visits to the university’s Copyright Licensing Office to learn more about fair use.

The Association of College and Research Libraries has posted a video of its live webcast featuring Lillian Rigling and Will Cross of NCSU Libraries explaining “Using Fair Use to Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians.”

Public Knowledge created a fun, mash-up, parody video, “Let Them Go: A Copyright Policy Song” with an accompanying blog post.

The Center for Media & Social Impact created this “Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices.”

Re:Create released the fourth episode of its Copy This podcast, this one featuring Corynne McSherry of the Electronic Frontier Foundation on “Fair Use: You Use It More Than You Realize.”

News/Blog Posts

The Canadian Association of Research Libraries (CARL) released a statement supporting Fair Use/Fair Dealing Week 2017.

Jim Neal, president-elect of the American Library Association and university librarian emeritus at Columbia University, wrote the editorial “Balance is Everything,” which was published in The Hill.

Harvard posted new blog posts each day of the week, as did the Center for Media & Social Impact. ARL Policy Notes, Authors Alliance, Dalhousie University, Duke University, Electronic Frontier Foundation, and Penn State University were among other organizations that also posted several times.

Michael Geist of the University of Ottawa covered fair dealing extensively in his post “The Copyright Lobby’s IIPA Report: Fake News about the State of Canadian Copyright.”

Ann Ludbrook of Ryerson University explained the importance of celebrating Fair Dealing Week in the context of the Canadian Copyright Review 2017.

Roundup from Day 5 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

Australian Digital Alliance, Video of the Livestream of the ADA Forum 2017: Morning Session

Australian Digital Alliance, Video of the Livestream of the ADA Forum 2017: Afternoon Session

Duke University Libraries,Fair Use Week 2017 at Duke

Open Media,Brett Gaylor talks copyright and remixed works with OpenMedia

Podcasts

PK in the Know Podcast,Charles Duan on Blurred Lines and Patterns in Music

Resources

Kyle K. Courtney, Jackie Roche and Sarah W. Searle, Harvard Library Office of Scholarly Communication, Comic Book: Fair Use of Unpublished Works

Blog Posts

Pankhuri Agarwal on Spicy IP,Yet Another Victory for Educational Access as Canada’s Federal Court of Appeal Upholds Copyright Board’s Fair Dealing Analysis

American Library Association Washington Office on Library Advocates,Copyright, Exceptions and Fair Use: Crash Course Intellectual Property” (includes video)

Patricia Aufderheide on CMSi blog,Fair Use Myths Debunked in Australia

Sara R. Benson on Copyright at Harvard Library,Making ‘Non-Consumptive Use’ Part of Your Fair Use Vocabulary

Janita Burgess on Organization for Transformative Works,Fan Creation & Copyright Survey: Preliminary Results

Brandon Butler on Perspectives from HathiTrust,Operationalizing ‘Non-Consumptive’ Fair Use to Revolutionize Human Research

Kyle K. Courtney on ARL Policy Notes,Fair Use Fights Fascism: First Amendment Thoughts During Fair Use Week

Zan Gillies on CMSi blog,Lyn Goldfarb Talks Fair Use in ‘Bridging the Divide

Elliot Harmon on Electronic Frontier Foundation, “Fair Use: Journalism Can’t Succeed Without It

David Hansen on Scholarly Communications @ Duke,Fair use is for students, and artists, and researchers, and . . .

Brandy Karl on Copyright Portal at Penn State, Fair Use Reading List #WeAreFairUse

Marlo MacKay on The Libvine,Fair Dealing and Students

Meera Nair on Fair Duty,Six Factors if Necessary

New Media Rights,#FairUseWeek2017 – Fair use is copyright law’s safety valve for free speech

Re:Create,Lim, Gwyn: Fan Vidders” (includes videos)

Carrie Russell,Fair Use Poem

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

Kit Walsh on Electronic Frontier Foundation,Copyright Law Versus Internet Culture

Fair Use Fights Fascism: First Amendment Thoughts During Fair Use Week

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 Kyle K. Courtney, Copyright Advisor at Harvard University, working out of the Office for Scholarly Communication.*

This year, I think, we should embrace and celebrate Fair Use Week more than ever. With our tumultuous political climate and daily shifts in the news cycle – this year I have thought a lot about fair use and its ties to our First Amendment rights.

As we know, the First Amendment has a great ideal: it protects political speech, promotes democratic culture, enhances participation in government, enables self-expression, and, hopefully, enhances the search for truth.

And, as our community is also well aware, copyright law can restrict uses. This is the nature of the law. Yes, we do grant a limited economic monopoly to the creator for a period of time. And even though U.S. law typically frowns upon monopolies (see the Shreman Act), that limited economic monopoly has an eventual benefit for that bargain with the public – eventually the rights will expire, and the public may use the materials freely.

However, through infringement suits, cease and desist letters, and other actions, a rightsholder does have the ability to stop certain uses during that long monopoly – uses such as printing, performing, or otherwise disseminating copyrighted works prematurely, before the expiration of rights into the public domain.

However, it is my belief, and others’ as well, that the fair use doctrine is intended to preserve, without infringement, the values enshrined in the First Amendment.

The fair use doctrine has been called an “internal safety valve” of copyrights’ potential overreach.

Fair use provides a narrow exception for certain types of limited uses. I use the safety valve analogy, as many others also teach, because fair use ostensibly guards against any chilling effect that would inhibit public speech. This prevents the type of “total control” if copyright holders were granted unlimited freedom to control all uses of their creative works.

Supreme Court Justice Stephen Breyer has written:

The First Amendment [must not be read] in isolation, but as seeking to maintain a system of free expression designed to further a basic constitutional purpose: creating and maintaining democratic decision-making institutions. (Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, p. 39)

Fair use is a critical part of that purpose. Fair use’s preamble states that certain uses of copyrighted material will not be infringement, including such free speech tools such as news reporting, commentary, criticism, research, and scholarship. These tools are then harnessed by works such as journalism, filmmaking, songwriting, and scholarly publications of all kinds – works that in certain circumstances, absolutely need to use portions of the original works, fairly, to make their point.

For those like myself, that are students of history, the First Amendment’s language, “Congress shall make no law abridging the freedom of speech or of the press,” was part of the Bill of Rights which was specifically added to supplement the Constitution. The Bill of Rights was added to ease the fears of the anti-Federalists, who were concerned that the Constitution lacked the language and strengths to prevent our new government from turning into a tyranny. A tyranny we had just defied by winning the Revolutionary War.

So, from its anti-Federalist origins in the founding of this country, to the many Supreme Court decisions, and the greater public understanding, the First Amendment has always had direct correlation with the fundamental belief that open, informed discussion of current events helps create and maintain our democratic decision-making institutions.

In a federal case from 1986, Maxtone-Graham v. Burtchaell, the court stated about the fair use doctrine:

From the earliest days of the doctrine, courts have recognized that when a second author uses another’s protected expression in a creative and inventive way, the result may be the advancement of learning rather than the exploitation of the first writer. (Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1259 (2d Cir. 1986), emphasis added)

Furthermore, Democracy itself could be challenged if copyright owners could set massive financial and legal barriers so high that the public at large would be unable to access and use materials in a fair and open manner.

There is a strong public interest in allowing these fair uses. What if the author has a need to directly use copyrighted materials? Paraphrasing and summarizing could be insufficient to make the point. Or, more importantly, what if seeking permission would result in censorship? And there are plenty of situations when there is simply no reasonable alternative to obtain consent. In all these scenarios, we understand why fair use must prevail.

Let us take a moment to understand during this Fair Use Week, and every day really, that the fair use doctrine gives us great abilities: we can make fair uses of copyrighted materials to challenge “alternative facts,” to examine and re-use photographs, to post-and re-post videos, speeches, and other media, and to simply quote directly from sources – for the purposes of challenging those sources with our own commentary, criticisms, news reporting, and analyses.

That’s’ how you fight fascism and tyranny.

Fair use provides us with the ability to use, re-use, comment, report, and criticize and maintain our dogged pursuit of the truth. Open, informed discussion is how we maintain our democratic decision-making institutions, and fair use is a large part of that equation.

If you are celebrating Fair Use Week this year, consider yourself both a fair use advocate and a first amendment supporter!

Happy Fair Use Week!

Roundup From Day 3 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL Presents Fair Use Week “Using Fair Use To Preserve and Share Disappearing Government Information: A Guide for Rogue Librarians” with Lillian Rigling and Will Cross, NCSU Libraries

Public Knowledge video “Let Them Go: A Copyright Policy Song

Brigham Young University Copyright Licensing Office on taking the fear out of fair use: “Fear Use

Let’s Talk Library video “Let’s Talk . . . Fair Use

Resources

New Media Rights, The Fair Use App

Blog Posts/News Articles

Leigh Beadon on Techdirt “Celebrate Fair Use With a New T-Shirt from Techdirt

Krista L. Cox on Copyright at Harvard Library. “Debunking Fair Use Myths” (Cross posted to ARL Policy Notes)

Cassie Deskus and Kristen Iglesias on Authors Alliance blog, “First Sale, Fair Use, And Digital Downloads: Capitol Records v. ReDigi

Copyright @ Western University, “Copyright Fair Dealing Analysis

Cory Doctorow on Boing Boing, “Let it Go, the Fair Use Week mashup version

Michael Geist, “The Copyright Lobby’s IIPA Report: Fake News About the State of Candian Coypright

Zan Gillies on CMSi blog, “Roger C. Memos: ‘Sweet Adversity’ and Fair Use

Julie Hare in The Australian, “Copyright laws ‘a hindrance to innovation’: Google

Marlo MacKay on The Libvine, “Fair Dealing: Why Is it Important?

Mike Masnick on Techdirt “The MPAA Versus Fair Use

Anali Perry on TeachOnline at Arizona State University, “Fair Use Week—Fair Use in Online Instruction

Shiva Stella on Public Knowledge, “Public Knowledge Launches Copyright Educational Video Based on Frozen’s ‘Let it Go’

Scholarly Communication @ Temple, “Fair Use from a Scholarly Publisher Perspective

Rebecca Tushnet on 43(B)log, “Reading list: aesthetic nondiscrimination and fair use

UCSF Library, “Four Factors of Fair Use—The First Factor: The Purpose and Character o the Use

UCSF Library, “Four Factors of Fair Use—The Second Factor: The Nature of the Copyrighted Work

University of Virginia Library News & Announcements, “Brandon Butler Suggests Simple Guideline for Celebrating Fair Use Week

Timothy Vollmer on Creative Commons blog “Copyright Filtering Mechanisms Don’t (and can’t) Respect Fair Use

Roundup From Day 2 of Fair Use/Fair Dealing Week 2017

*Cross-posted from Fair Use Week*

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2017! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts

Re:Create Copy This Podcast Episode 4: Fair Use: You Use It More Than You Realize with Corynne McSherry (EFF)

Videos

CMSi, Fair Use Video Code: Documentary Filmmakers’ Statement of Best Practices

Blog Posts

Authors Alliance,Fair Use Week: Our Best Practices Guide is Underway

Jonathan Band on ARL Policy Notes Blog,Copyright Notice and Fair Use

Brandon Butler on Copyright at Harvard University Blog,Fair Use and Open Access: Two Great Tastes That Taste Great Together

Canadian Association of Research Libraries,CARL Statement in support of Fair Use/Fair Dealing Week 2017

Melanie Clark on Visual Resources Association Blog,Fair Use Week: Image Sources

EDUCAUSE,Fair Use

Ellen Euler, Anne Klammt und Oliver Rack on Deutsch Digitale Bibliothek,Bereit zu teilen?” (translation: “Ready to Share?”)

David Hansen on Scholarly Communications @Duke,Fair Use For Authors

Brandy Karl on Penn State Copyright Portal,Penn State Celebrates Fair Use Week 2017 #WeAreFairUse

Brandy Karl on Penn State Copyright Portal,Fair Use Myths & Facts #WeAreFairUse

Joshua Lamel,Fair Use: You Use It More Than You Realize

Mayra Linares on CMSi,How to Use Copyrighted Material in Your Work: Fair Use Week

Jeremy Malcolm, Electronic Frontier Foundation,Australia’s Battle Over Fair Use Boils Over

Jim Neal in The Hill,Balance is Everything

Stakebait on Archive of Our Own, “In Defense of Fanfiction (a sonnet to Fair Use)

Rebecca Reznik-Zellen on LSL Now,Fair Use Week 2017

Adrian Sheppard on The QUAD Where UAlberta Meets Online,The Importance of Fair Dealing

Copyright Notice and 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*

The absence of a copyright notice on content posted by its author on the Internet should weigh in favor of fair use of that content, by libraries and other users, under the second fair use factor.

Until the United States joined the Berne Convention in 1989, a work could fall into the public domain if it was published without a copyright notice. The notice had to include the copyright symbol, the name of the copyright owner, and the year of first publication. The Berne Convention prohibits “formalities” as a condition for protection, so once the United States joined the Berne Convention, it eliminated the notice requirement.

However, the Copyright Act still provides an incentive for including a copyright notice. Under 17 U.S.C. § 401(d), if a copyright owner applies a copyright notice to his work, no evidentiary weight may be given to a defendant’s claim that he is an innocent infringer in mitigation of damages. In other words, if the copyright owner applied a notice, a defendant can’t claim the infringement was innocent because he or she “was not aware, and had no reason to believe, that his or her acts constituted an infringement….” This means that the defendant can’t seek reduction of the statutory damages minimum from $750 to $200 per work infringed.

The Copyright Act does not set forth what impact copyright notice should have on the fair use analysis. Nor, as far as I am aware, does the fair use case law. But a powerful argument can be made that the absence of a copyright notice should weigh in favor of fair use under the second fair use factor.

The second fair use factor—the nature of the copyrighted work—receives little attention by courts. They typically ask whether the work is published or unpublished, and whether it is a work of fact or fiction. Robert Kasunic has argued that courts should take a more nuanced view of the second factor. In particular, Kasunic contends that the second factor should be understood to ask “whether copyright might have reasonably encouraged or provided an incentive for an author to create the work.” Kasunic adds that “once we understand the work and the reasonable and customary expectations of authors for that type of material, we can better understand how various uses might affect the incentive to create such works.” Significantly, the starting point for Kasunic’s analysis is Judge Leval’s famous law review article Toward a Fair Use Standard. With respect to the second factor, Kasunic explains that Judge Leval “recognized the need to distinguish between authors of works for whom copyright provided an incentive to create and those authors who were incidental beneficiaries of copyright.”

It is hard to imagine a clearer indication of an author’s expectations concerning her work—whether she intends to use copyright to control subsequent uses of her work or instead is an “incidental beneficiary” of copyright—than whether she attached a copyright notice when she published it. In many situations, a user could reasonably assume that by omitting notice, the author was signaling that she did not expect to rely on copyright to control reproduction and distribution of the work. In such situations, the author’s failure to place a notice on the work should weigh in favor of fair use under the second factor.

What are these situations? Daily, millions of photographs, videos, blogs, songs and other works are posted on the Internet. Many (if not most) of these works are posted without copyright notice. The terms of service of large social media platforms such as Facebook specify that users agree that everyone may use their content published on the platform. But vast quantities of content are posted on other websites that do not have such terms of service. People repost these works without requesting the author’s permission and without incurring the author’s opposition.

In the event the author of such a work did challenge a reuse, fair use is the legal theory that would best support the lawfulness of the reuse. And the absence of copyright notice should buttress the fair use calculus under the second factor. A user could reasonably interpret the absence of notice as a signal that the author did not expect to rely on copyright to control the reproduction and distribution of the work—that the author is just an incidental beneficiary of copyright. Of course, this is just one element of one factor, and would not be dispositive of the fair use question. And if there were indicia that the work was posted on the website without the author’s authorization, then the absence of notice should have no weight.

Factoring the absence of notice into the fair use calculus could be of particular importance to libraries interested in harvesting content posted on websites. Although the existing fair use case law is very strong for the preservation of this content and its inclusion in search databases, the jurisprudence is less developed with respect to providing access to full text or full-sized images. The argument that the author’s failure to include notice tilts the second factor in favor of a fair use determination should give libraries additional comfort as they decide what to do with web content they have collected.

ARL Files Amicus Brief in Capitol Records v. ReDigi

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.

The start of Fair Use/Fair Dealing week, which runs from February 20-24, 2017, immediately follows a week in which ARL filed amicus briefs along with other library associations and organizations in two fair use cases. The first case, ARL joined the American Library Association (ALA), Association for College and Research Libraries (ACRL) and the Electronic Frontier Foundation (EFF) in filing a brief in the Georgia State e-reserves case which is again before the Eleventh Circuit. In the second case, ARL joined ALA, ACRL and the Internet Archive in filing an amicus brief in Capitol Records v. ReDigi, currently before the Court of Appeals for the Second Circuit, arguing that other existing limitations and exceptions can tilt the first fair use factor (character of the use) in favor of the user and that fair use encourages innovative services.

In the summary of the argument, the brief notes:

First, in its truncated fair use analysis, the district court ignored the similarity between the use ReDigi sought to make and uses authorized by Section 109(a). This similarity should have tilted the first fair use factor, the purpose and character of the use, in favor of ReDigi. In Authors Guild v. HathiTrust, 755 F.3d 87, 102 (2d Cir. 2014), this Court used the rationale for a specific exception—17 U.S.C. § 121, which permits the making of accessible format copies for people who have print disablilites—to support a finding of a valid purpose under the first factor. Likewise, the Copyright Office has repeatedly based fair use conclusions on specific exceptions in the context of a rulemaking under section 1201 of the Digital Millennium Copyright Act, 17 U.S.C. § 1201. As this Court did in HathiTrust and the Copyright Office did in the section 1201 rulemaking, the district court should have recognized that the purpose behind the first sale right tilted the first fair use factor in favor of ReDigi.

Second, the brief argues that a positive fair use determination in this case would encourage libraries to provide innovative services to their users. Fair use findings in technology cases have permitted libraries to provide new, digitally-based services such as HathiTrust Digital Library. In addition to enabling researchers to find relevant texts and perform critical data mining, HathiTrust provides full-text access to over fourteen million volumes to people who have print disabilities. A fair use finding in this case would provide libraries with additional legal certainty to roll out innovative services such as the Internet Archive’s Open Library. Such a result would increase users’ access to important content without diminishing authors’ incentive to create new works.

The full brief can be read here.