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Google says we need more ‘fair use’, but ex-RIAA man isn’t so sure
By Chris Cooke | Published on Friday 24 February 2017
So, have you recovered from this week’s big party yet? It’s a raucous affair isn’t it? Fair Use Week, I mean. I’ve been partying non-stop since Monday morning and I’m truly exhausted. I might take the day off to undertake some casual copyright infringement. Or not, maybe.
So yes, this has been Fair Use Week, a programme of events backed by an assortment of universities, libraries and lobbying groups, mainly in North America, designed to celebrate those elements of copyright law that allow people to legally make use of copyright material without a licence in certain scenarios, usually for educational, creative or journalistic, or maybe just practical, reasons.
Google has used the occasion to call on Australia to expand its narrower concept of ‘fair dealing’ into something more like America’s fair use system; while US think tank the International Center For Law & Economics questioned the motives of those relentlessly bigging up fair use, for example by staging a thing called Fair Use Week.
Google’s Senior Copyright Counsel William Patry was talking up fair use to newspaper The Australian. Such things are newsworthy in Australia just now because, as previously reported, the country’s Productivity Commission last year produced a report for the Australian government proposing an expansion of so called copyright exceptions. That could possibly mean Australian copyright law, which currently has the narrower concept of fair dealing – like in the UK – adopting something more like fair use in America.
That would be a very fine development, says Patry, because current copyright rules in Australia hinder innovation and productivity. “We think Australians are just as innovative as Americans, but the laws are different”, he told the paper. “And those laws dictate that commercially we act in a different way. Our search function, which is the basis of the entire company, is authorised in the US by fair use. You don’t have anything like that here”.
Arguing that, while companies like Google can do business in Australia, they couldn’t base all their operations there, because of the country’s copyright rules, Patry went on: “The Australian government should amend the Copyright Act 1968 to replace the current fair dealing exceptions with a broad exception for fair use. The new exception should contain a clause outlining that the objective of the exception is to ensure Australia’s copyright system targets only those circumstances where infringement would undermine the ordinary exploitation of a work at the time of the infringement”.
Meanwhile, over at the International Center For Law & Economics back in the US, Neil Turkewitz – who worked at the Recording Industry Association Of America for nearly three decades – and is now Senior Policy Counsel For IP & Digital Economy at the think tank, reckons that companies like Google too often embrace the concept of ‘fair use’ less because they care about copyright hindering creative expression, and more so they can make use of copyright material at minimal cost.
In a blog post on Medium, Turkewitz wrote: “In honour of Fair Use Week, let’s begin by unmasking the false premise underlying much of the celebration of fair use – that is, that the basic objective of the copyright system is to achieve a balance between the ‘public interest’ on the one hand, and the interest of private copyright owners on the other. In this formulation, the ‘public’ interest is exclusively defined as the ability to get copyrighted materials as cheaply as possible, with free obviously being the best option”.
Criticising groups that advocate stronger fair use rights – like the Electronic Frontier Foundation and Public Knowledge – he goes on: “They say that they care about ‘creativity’ and that fair use is critical to the interests of society. Copyright owners agree, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process”.
Insisting that copyright owners recognise that certain exceptions are required for creative and practical reasons, he continues: “We recognise that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something”.
He then explains that fair use in the US actually has two distinct elements to it. Copyright limitations are excluded for: [a] “truly transformative uses given the understanding that the production of cultural and literary artefacts reflects the past and borrows from earlier expression”; and [b] “certain consumptive uses that are deemed to have marginal economic impact on the copyright owner”. He argues that the fair use brigade often use the former to get public support, but then push for more exceptions in the latter category.
“Many of those that celebrate fair use draw upon the sympathetic environment for considering expressive/transformative uses (ie the use of protected materials in reporting, commentary, satire, parody or the production of new creative works), but apply them to consumptive uses that lack social value”, he writes. “This results in championing economic inefficiency while using the language of freedom”.
Turkewitz concludes by arguing that while it’s right that fair use protects new creators inspired by previous creations, that’s of no value if it stops new creators from being able to live off what they create.
“How about ‘sustaining creativity week?'”, he proposes at the end of his blog. “If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate”.
Anyway, whichever Fair Use Week wrap party you decided to attend, I hope it’s inspirational but not too infringing.
