Tag Archives: freedom of speech

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!