Copyright & Fair Use

This article from Kevin L. Smith, published online by Library Journal on October 18, 2012, presents a truly excellent argument in favor of Fair Use:

Why Are Some Publishers So Wrong About Fair Use?

It also serves to crystallize many of my thoughts regarding the changing nature of copyright law in this country.

When I first began studying the history of copyright law it became clear to me that it was originally intended to serve two core principles:

  1. To foster creativity by protecting the rights of the creator. This principle ensures that the creator of a work maintains proper credit for their creation and provides them with a reasonable opportunity to try and profit from it.
  2. To foster the public good by maintaining a collective pool of cultural resources. The health and wealth of our nation depends as much on its cultural resources as on its natural and economic ones. After a creator has proper credit for their work ensconced in the historical record and public consciousness, and when they’ve had sufficient opportunity to profit from it, they then have an obligation to give their work over to their country. It’s a civic duty, like paying taxes and voting, necessary to maintain and improve the public good.

It’s this second core principle that’s been lost in the debate over copyright. For the past several decades, most attempts to amend copyright law have been with the intention of lessening – or entirely removing – this obligation to the public good.

It’s this second core principle that public institutions – such as libraries and schools – seek to serve.

(The Association of Research Libraries maintains a thorough list and summaries of major events in the history of copyright law in the United States, which I refer back to often.)

Tellingly, the vestigialization of the public good in copyright law began when non-creator entities, such as publishers and distributors, became legally empowered to hold intellectual property rights to the creations of people contractually bound to them. These non-creator entities have been central to the efforts to reduce the importance of this second core principle.

Non-creator entities are corporate and commercial organizations. Corporations can, and frequently do, outlive the span of an individual’s life. When copyright law first began in this country, it was only the individual creator who was allowed to hold rights to their creation; it made sense to base the rights holding period on the average lifespan of an individual.

When corporations outlive the span of any individual creator within them, the span of potential profitability becomes much longer than just one individual’s lifetime. It therefore makes sense for corporations to try and increase the length of the rights holding period; after all, the first responsibility of a corporation is to its own bottom line.

Unlike individuals who can and do feel responsibility for their fellow man, it’s difficult to hold a corporate entity to this same obligation.

So how do we proceed with copyright law?

My personal conviction is that non-creator entities shouldn’t be allowed to hold copyright, or any intellectual property rights, to creative works. Only the people who create something should have rights to it. Corporations can engage in contracts with individuals wherein those individuals agree to provide some share of the profit from their work with the corporation – but that should never be allowed to translate into a corporation possessing direct rights to a creative work.

However, I know that’s never going to happen. And such a stance can’t help but generate even more conflict between creators, non-creator rights holding entities, and institutions dedicated to the public good.

But there are a few paths for us to try and regain our lost sense of service to the public good. There are ways for us to convince non-creator rights holding entities that nurturing the public good serves their private interests.

  • We can gather data to prove to non-creator rights holding entities that the active maintenance of the public good is also good for their bottom line. Convince corporations that it’s in their fiscal best interests to eventually donate creative works to a communal repository. After all, the more resources everyone has to bring to bear on their work, the better everyone’s work will be. What’s good for all is good for each.
  • We can show that without generous Fair Use clauses, education in this country suffers. Without well-educated citizens, corporations will be stuck with badly educated employees, which will cause the business to suffer over the long term. It’s in their best interest to foster a quality educational system to ensure the best quality future employees. Fair Use is essential for this!
  • A culture of creativity helps private business do better – it makes corporations more supple, adaptable, innovative, and likeable in the eyes of consumers. However, when a corporation is allowed to hold rights to creative works above and beyond the rights of the individual creator, it frequently discourages creativity among employees. It’s in the best interest of the corporation to defer to the individual creator, to foster a culture of support and unrestricted creative freedom. After all, why should I give a company my creation if they stand to profit more from it than me?
  • There are people within our government who recognize the danger and damage done when non-creator entities wield more power and influence over intellectual property rights than individual creators. They can, and do, work to bring a healthier balance to copyright law. We can, and should, encourage and reward these people for doing so!

I believe that it’s essential to the health and well-being of our country to actively maintain a pool of cultural resources for the use and edification of all citizens. I believe that generous Fair Use terms within copyright law are essential to the maintenance of the public good. I believe that it’s the civic duty of all individuals and corporate entities to fulfill their obligations to their fellow citizens in this regard: to give their creative works over to be used and treasured by all.

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5 thoughts on “Copyright & Fair Use”

  1. I like this but I have to ask where do you think Creative Commons fits into this and how effective do you think of it as an organization?

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  2. Personally, I love CC! It’s based on the idea that the choice to share or restrict a work is up to the individual creator only. It’s a system that believes that people want to share their work.

    I don’t think CC would have been possible before the digital age. When creators had no other options for distribution of their work but to go through publishers & distributors, they were automatically forced into a copyright system that’s largely controlled by those same organizations. Now that creators have options that allow them to produce, distribute, and sell of their work independently (granted, they may not always be the best or most practical options for success, but at least the options exist now!) CC similarly breaks them free from the ensconced copyright system.

    All that being said – there are a couple ways in which CC fails:

    1) While CC is based on the assumption that, given a choice, people are willing to share their work, there’s no time limit built into the terms assigned to a work. If someone chooses the most restrictive terms for their work, there’s no way within the CC system to require them to lift such restrictions after a certain period of time. So it doesn’t guarantee the maintenance of the public good.

    2) CC isn’t law. It can be superseded by copyright law. And there’s no guarantee that CC licenses are fully enforcable in court.

    I could be wrong about my above assessment, though. I’ve not made a study of Creative Commons the way I have of copyright.

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  3. I do wonder how both of those aspects will change when this system comes under legal challenge, which makes me wonder if CC has ever come under legal challenge. The second aspect should be less of a concern in the sense that I don’t think (key word here) that users of CC are placing works under both systems but I could be massively wrong. Though I would like to see CC support their members in a court case so see how this stack up in a fair use case.

    And no I do not believe CC would work in a pre-digital age, though it might be able to poorly. Simply operating as a low end legal service that will protect your intellectual property in the way you choose based on a set of options may function but it could be costly. But this method would place it in a position to be forced into legal challenges more easily than CC does now so it would be tested sooner.

    With that said here are some existing challenges to CC: http://en.wikipedia.org/wiki/Creative_Commons#Legal_cases
    And from these four sets of cases it certainly seems to work more than not. This one:
    http://www.technollama.co.uk/does-creative-commons-need-more-court-cases
    Looks into it a bit more and feels that it doesn’t need to be tested but shows a couple more cases of it working.

    So it looks like it works when applied right but it’s still young.

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    1. As I said – I love CC! And no, I don’t think people put their work under both. As an incentive to explore options beyond copyright, I think CC has already provided us with an invaluable service!

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