Fair Use Under Attack Worldwide by Big Content

By Brandon Lovested | in Fair use | 11 Apr 2008 | No Comments

Fair Use is a legally protected right of access to copyrighted materials, and deals with the limitations of copyright holders in the public interest. Reporting, education, criticism and parody are all protected under the Fair Use section in U.S. copyright law.

“Big Content” (aka content providers who are part of Big Business) wants to change that — here and abroad — in order to gain more rights over their content, regardless of public interest. It’s a quiet power grab of which few are aware.

A recent article on Ars Technica quotes copyright law expert William Patry’s reference to a “counter-reformation” against the very idea of Fair Use and its expansion, along with intellectual property rights, across the globe.

“The purpose of the movement,” he says in a recent blog post, “is to chill the willingness of countries to enact fair use or liberal fair dealing provisions designed to genuinely further innovation and creativity, rather than, as is currently the case, merely to give lip service to those concepts as the scope of copyright is expanded to were-rabbit size.”

The counter-reformation in question takes the form of a “whispering campaign” in which ministries in different countries are told that plans to expand fair use rights might well run afoul of the Berne Convention’s “three-step test.” The Convention, which goes back to the late 1800s, was one of the earliest international copyright treaties and is now administered by the World Intellectual Property Organization (WIPO).

Patry, a former law professor and advisor to the US Register of Copyrights, now works for Google, which as an indexer (and not producer) of information, is generally in favor of a more liberal copyright regime that allows it to use thumbnails of copyrighted works, excerpt short snippets of copyrighted books, and index copyrighted web page text. But Patry is one of the foremost US experts on copyright law, and if he sees a secret gathering of the Pro-Copyright Magisterium, it’s worth paying attention.

Part of this anti-Fair Use marketing campaign is the reference to Article 9 of the 19th-century Berne Convention, which basically outlines the limits to copyrights that a nation can enact. Big Content’s argument is that Fair Use runs afoul of such a limit, despite well over 100 years of rulings to the contrary, including U.S. Congressional hearings where no inconsistencies were found between U.S. Fair Use laws and European and WIPO laws. Next, Big Content will have us believe it’s illegal to listen to music more than once without having to pay for it again.

Section 107 from the Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code states:

§ 107. Limitations on exclusive rights: Fair use

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.

And yet this disinformation is being used to go after countries whose liberal copyright policies Big Content doesn’t like (see recent efforts in Canada and Israel). Indeed, Big Content is pushing an anti-consumer agenda through the U.S. Congress with its “PRO-IP Act.” Different dance, same tune.

As more legislation gets passed that erodes consumer rights in America by a bought-and-paid-for Congress, one day we shall wake up in a world whose global communications medium is completely locked down, with nothing to say.