As part of a continued effort to review and improve U.S. copyright law, a House panel this week held a hearing to consider the scope of the fair use doctrine, a key legal tenet that allows the unlicensed use of copyrighted works in certain circumstances.
Recently hired NPPA Executive Director Chip Deale and General Counsel Mickey Osterreicher were on hand as the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet heard expert testimony centered on the question of whether legislative action is needed to address fair use.
The majority’s conclusion: probably not.
The current four-prong test for whether a potential infringement is considered fair use balances society’s interests in the free exchange of information and creator’s property interests in their works. Copyrighted works used for criticism, comment, news reporting, and research typically fall under the exception.
It’s nearly universal accepted that fair use is a critical aspect of American intellectual property law. There is, however, some disagreement as to the manner in which it sometimes applied. Particularly problematic in the eyes of some legal scholars is the increased weight courts appear to be assigning to whether a new work “transforms” the original. The bar for what’s considered transformative has been relatively low on occasion; complete reproductions used for commercial gain have been allowed in cases where the works are being used for a new purpose or to exploit a novel market.
Columbia law professor June Besek testified as to her concern over this interpretation:
“[An] expansive view of what it means to be transformative has opened the door to claims that making complete copies of multiple works, even for commercial purposes, and even without creating a new work, can be a fair use. This is a substantial departure from the long-prevailing view that copying an entire work is generally not a fair use,” Besek said.
Besek argued against the Supreme Court’s rationale in the Google Books case, a highly publicized decision in which the high court found that the Internet giant’s copying of millions of texts into digital format was fair use.
This “functional transformation”, in which a user does not substantially alter the content of a work, is beyond the scope of fair use, and risks unjustifiably interfering with author’s property interests, Besek said.
Despite her disagreement with increasingly broad applications of the doctrine, Besek said she believed legislative action to alter the fair use doctrine was unnecessary. She suggested separate action might be taken to specifically address the digitization of texts.
American University law professor Peter Jaszi agreed that Congressional revision isn’t needed at this time, arguing that a “flexible, open-ended fair use doctrine is well suited for application to digital mediums.”
Kurt Wimmer, who serves as the General Counsel for the Newspaper Association of American, put an even finer point to the sentiments that seemed to be shared by the others who testified:
“Court decisions interpreting fair use have not always been perfect, but overall we have faith that the long arc of the common law will, over time, result in workable fair use decisions for all members of the digital ecosystem and for the public we serve,” Wimmer contended.
This understanding of the fair use, as a self-correcting doctrine that should be allowed flexibility to adapt to the medium’s in which operates, will be tested when a judge reconsiders photographer Partrick Cariou’s copyright suit against artist Richard Prince. Cariou sued Prince after the artist integrated Cariou’s pictures into an exhibit without permission. Claims as to the all but five of the works have been dismissed. The legal standard the court applies as to the works “transformativeness” will be important signal as to the breadth fair use doctrine moving forward. In December, the NPPA joined several other advocacy groups in filing documents supporting Cariou.
Joe Keeley (left) Listens as NPPA General Counsel Mickey Osterreicher (center) makes a point and NPPA Executive Director Chip Deale (right) looks on at a break in the hearing “The Scope of Fair Use” held by the Subcommittee on Courts, Intellectual Property and the Internet, Tuesday January 28, 2014 (Photo by John Harrington)
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