The Tricky Task of Defining “Fair Use” in an electronic world

Copyright-imageAlmost every copyright infringement dispute regarding the Internet and electronic media comes down to the tricky task of defining what is Fair Use.

The Fair Use provision of US Copyright law was meant to ease the ways in which copyrighted material could be used to facilitate research. Teachers could reproduce portions of copyrighted material to illustrate a lesson, news reporters and broadcasters would not have to worry if copyrighted material was used incidentally during a news report.

This definition was crafted before the Internet was even a speck on the horizon. At that time using copyrighted material posed a bit of a challenge but in today’s world, where copyright infringement is a right-click away, Fair Use has blown up into a political issue with lobbyists now attempting to stretch the initial intent of the law to fit in digital world.

So far, determining how to apply Fair Use to the Internet and electronic media has proven to be a complex task for the courts. In the mammoth Google/YouTube v. Viacom copyright infringement case, the final decision of the court revolved around an interpretation of the Digital Millennium Copyright Act (DMCA), which addresses the liability of the online service provider, while dancing around the proverbial elephant in the room…the definition of Fair Use.

Cory Doctorow has an interesting post in which he discusses a very concise definition of Fair Use put forth by Tim Wu. Wu’s proposed definition of Fair Use is as follows:

If it adds new value, it’s Fair Use. If it substitutes for the original, it’s infringement.

It’s simple enough, to be sure, but it’s far more favorable to the users of content than it is to the creators of that content. It tracks along the lines of the ideas in Lawrence Lessig’s book Remix which argues that creative content should become something freely available to all for the benefit of moving the culture forward (how did our culture ever move forward before Lessig?). With Remix Culture, content can be used and turned into something else without the permission or remuneration of the original creator. Take a Beatles song, put some new beats on it and viola, you’re a composer.

Lobbyists now talk of the Fair Use Industries and a Fair Use Economy. I would ask – Fair Use Economy vs. what? The Copyright Economy? There is some heavyweight positioning going on trying to broaden the interpretation of Fair Use. To me this is almost always being done to restrict or remove the existing rights of content creators.

To see how the digital world can quickly skew the concept of Fair Use, one need only look at homemade videos uploaded to YouTube. Here you have a non-commercial, family video that uses a popular song as a soundtrack (obvious fair use). But then it gets uploaded to YouTube and becomes site content. Fair Use? It’s now an issue of interpretation. Is the content still Fair Use because the user created the content for private use, or does it infringe on copyright because that content is now an asset of YouTube, a money-making enterprise.

Yes, things get murky in an electronic world. Here’s my understanding of copyright and Fair Use. It’s also a simple definition but it’s one that is being rigorously challenged.

If the content in question is not original to your project (not created by you/in-house or work-for-hire) and its usage is contributing to a commercial enterprise then it is not fair use and the media should be legally licensed.

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