“Hey, Accordion Boy,” you might say at this point, “in your last posting, you were trying to drive home a point about fair use and just went on about copyright instead!”
To which I would reply, “For starters, that’s Accordion Man, bucko, and you can’t talk about fair use without first defining copyright.”
In my last posting, I said that the idea behind copyright was to promote creativity by granting creators exclusive rights over their work. This control would grant creators the right to control the distribution of their work and to earn fair profit for their creativity by giving them a mechanism for charging a fee (called a royalty) for its use.
The problem with absolute copyright is that it’s too restrictive to be practical. You’d have to ask for the creator’s permission every time you wanted to use his or her work, no matter what (and if they did grant you permission, it would be their right to charge you a royalty fee). If you were writing a book report and wanted to quote passages from that book, you’d have to get permission from the author (and perhaps pay the author a fee). If you wanted to tape a television show that you’d otherwise miss, you would have to contact the studio that owned the show to see if it was okay with them (and perhaps pay them a fee). If you wanted to hum a tune by your favourite recording artist, you’d have to get the permission of the record company (and knowing record companies, you most certainly would have to pay them a fee).
Fair Use
The antitode to this ridiculous restrictiveness is the doctrine of fair use. Fair use is one of the exceptions to copyright, granting the public limited rights to the use of works without the permission of the copyright holder under certain circumstances. The idea behind fair use is to provide people the freedom to use and enjoy the works of creators while still honouring the intent of copyright.
The Legal Definition
Fair use is a fuzzy area of copyright law that’s open to interpretation. Rather than providing some hard-and-fast rules by which one can determine whether the use of a copyrighted work is fair use or not, section 107 of U.S. Copyright law defines four factors that determine when the use of copyrighted work can be considered fair use (the boldface stuff in quotes is from the actual legal doc itself, the indented stuff is mine):
“The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”
The use of a copyrighted work is more likely to be considered fair use if:
- it is being used for educational or non-profit purposes rather than for-profit purposes.
- it is more than a just a copy of the original — say, an alteration or enhancement.
- it is being used for a pupose different from the original
- it is being used for a different audience
“The nature of the copyrighted work”“
The use of a copyrighted work is more likely to be considered fair use if:
- it is already published. A unpublished work has not yet been seen by the public, and may be considered private property — using it may be interpreted as theft.
- it is out of print
- if the work is factual rather than artistic (since facts belong to no one)
“The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
The use of a copyrighted work is more likely to be considered fair use if:
- you use a small fraction of work rather than a significant portion of it
- the portion of the work you use is not the “meat” or “essence” — that is, its use does not adversely affect the creator’s ability to earn fair profit for his/her effort
“The effect of the use upon the potential market for or value of the copyrighted work”
The use of a copyrighted work is more likely to be considered fair use if:
- your work differs from the original
- your work is aimed at a different audience
- your work contains some of your own original material
The Real World
As I mentioned earlier, the four factors in determining what is fair use are guidelines, not hard-and-fast rules and regulations. They are open to legal interpretation. Here are some cases of the fair use of copyrighted works:
- Quoting passages from a work for criticism or review
- Teachers photocopying sections or chapters of books as handouts for their students
- Making a personal copy of a CD, making a “mixed tape” or “mixed CD” of tunes from my library of CDs or converting my CD-based music into MP3 files for playback on my computer or portable MP3 player. You can even make mixed tape/CDs for friends, accordiong to the Audio Home Recording Act
- “Time shifting” — videotaping a television show so that I can view it later (I can’t stay at home to catch SNL, I have a life, dammit!). This was established in a landmark trial often called the “Betamax Case”.
- Parody – the classic case where fair use doctrine protected a parodist is the 2 Live Crew case (yup, the Me So Horny guys) when they did a parody of Roy Orbison’s Pretty Woman.
- Editorial artwork. Here’s an example of fair use of Mickey Mouse.
Take a good look at these examples. Some of them may not apply in the future, if certain industry groups have their way.
Hillary, You Ignorant Slut
No, not Hillary Clinton. I’m referring to Hillary Rosen, president of the RIAA (Recording Industry Association of America). According to their site, the RIAA is “the trade group that represents the companies and people making creative works in the recording industry”. In my none-too-humble opinion, this is a half-truth.
In July 2000, the U.S. Government held a Senate Senate Judiciary Committee hearing on downloading and file trading chaired by Utah Senator Orrin Hatch. Mr. Hatch is both angel and devil, being a man who understands technology, music industry and fair use as well as being the principal architect behind the odious Digital Millenium Copyright Act (a subject for another essay). Hatch is also a recording artist whose songs have broken the top 10 on the Christian charts (not that it would take much, but that’s beside the point). At the hearing, he participated in a most telling exchange about fair use with Ms. Rosen. I hereby invoke fair use by quoting the following passage from Leflaw.net’s story on the hearing:
”Can I make a copy of a CD that I buy and put it into a car?” asked Hatch. When Rosen hemmed and hawed, Hatch muttered, ”The answer is yes.”
”Is it fair use to give the copy to my wife for her car?” Hatch continued. ”Is it fair use for me to rip a CD? Is it fair use if (a computer network) decides for efficiency reasons that one copy is sufficient to serve for storage, instead of keeping 200 separate copies, is that fair use?”
”None of these is fair use,” Rosen eventually replied. She argued that musicians’ willingness to ”tolerate” people making copies was an instance of ”no good deed goes unpunished.”
It would seem that the bad record industry execs are going unpunished.
Next: The technological angle.