The next subject Essentials hits upon is the doctrine of fair use, another dominant IP issue in the new century. Although long existent in U.S. common law (with origins in a 1709 U.K. statue), it wasn't until the 1970s that is was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107 , the act being the first major revision in statutory (in contrast with common) copyright law since 1909in the following language:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors
Generally, 107 leaves favorable uses of copyrighted content to uses that "advance the public interest", such as the explicitly mentioned teaching, criticism, and scholarship. Satire and parody have also come to be included.
In attempting to define when it was permissable to make "copies" and when not, the statue was well intentioned, and set an important precedent in the fair use concept. A look at the language, however, reveals its premature obsolescence as a robust and tailored balancing test.
Phonorecords, now referred to as vinyl by those who still find their analog divits charming, have not been mass vessels of content for over a decade. First cassette tapes, than CD's, and now compressed digital formats (mp3, AAC, WMA) have marched along as the formats of choice. And this is not just a matter of fashion. The transition from vinyl to high-compression digital gradually but dramatically changed the ways we use, create and distribute content. Likewise have the transitions from the movie reel to portable (vhs/dvd) to compressed/streamed digital (i.e. DivX, YouTube), and, from print publication to web publication.
The digital defers primary from the analog in that one can transfer a perfect copy of a digital "original" to another without losing the "original" itself. And this can be done at a marginal cost and in a mass, global way via the internet. When one buys a song from the iTunes music store, or copies to their hard drive articles from the NYT paid-subscription service, one is making an exact copy in this way. Again, burn that song to a CD for your car or share the article with an interested friend via email (in the same way one might have clipped it from the paper in the past), and a reproduction of that content is being made. In this context, the conventional understandings of "reproduction" and "copies" present in current copyright law seem untenable.
Larry Lessig, a leader in raising this awares, said it well at the 2002 Open Source Convention
Here's a simple copyright lesson: Law regulates copies. What's that mean? Well, before the Internet, think of this as a world of all possible uses of a copyrighted work. Most of them are unregulated. To sell it, to sleep on top of it, to do any of these things with this text is unregulated. Now, in the center of this unregulated use, there is a small bit of stuff regulated by the copyright law; for example, publishing the book — that's regulated…
Enter the Internet. Every act is a copy, which means all of these unregulated uses disappear. Presumptively, everything you do on your machine on the network is a regulated use. And now it forces us into this tiny little category of arguing about, "What about the fair uses? What about the fair uses?" I will say the word: To hell with the fair uses. What about the unregulated uses we had of culture before this massive expansion of control?
I havn't learned enough to say with any certainty "to hell with fair uses", but I do believe that, at the very least, a through re-evaluation of our copyright structure is in order. Again, this issue will be a major theme in my continued thinking and in end-of-semester paper.
