Sunday, April 26, 2015
Fair Use is a perfect concept in the USA but it is hijacked in Europe by anti-copyright lunatics
PATRICIA AUFDERHEIDE & PETER JASZI – RECLAIMING FAIR USE
– 2011
This is a real bible for fair use
right now in the USA .
It is inescapable, unavoidable, indispensable. But at the same time it assumes
we know our basics and I think it is necessary to start with a quotation they
do not give, the section of the US Code that defines fair use (17 US Code
Section 107)
“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. In determining whether the use
made of a work in any particular case is a fair use the factors to be
considered shall include—
(1) the purpose and character of the use,
including whether such use is of a commercial nature or is for nonprofit
educational purposes;
(3) the amount and substantiality of the
portion used in relation to the copyrighted work as a whole; and
The fact that a work is unpublished shall not itself bar
a finding of fair use if such finding is made upon consideration of all the
above factors.”
This is the official section of
the US Code that states the four factors to which we are going to come back
over and over again.
The second document they mention
but do not quote is the famous and founding article by Pierre N. Leval, “Toward
a Fair Use Standard” published in 1990 in the Harvard Law Review (Issue
103, pp. 1105-1136 plus 128 notes, some extensive). I will not quote it, but I
would advise you to get to it.
Let’s follow the fundamental
ideas and emphasize what is essential from the point of view of creators and
inventors and the protection of their intellectual property, particularly the
moral right of that intellectual property. I want to be extremely clear on one
point: most authors entrust their own intellectual property rights to some
producer, publisher, or any other merchant who wants to make as much money as
possible with the copyright they have bought from the creator but they do not
represent the real interest of the authors and creators because they only
exploit the economic dimension of them. They have imposed a long duration to
that copyright (70 years after the death of the creator, more than two
generations: the copyright is thus transmitted to the grandchildren, at times
the great grandchildren) and no possibility, or very few possibilities to bring
a contract of that type to an end in Europe, though it is slightly better in
the USA where the copyright can be recuperated by the creator after a few years
in some conditions. The producers of any type want a long duration not for the
creators but for the copyright they own in full property (they granted authors
with a long duration not to seem too greedy but that’s all they are, greedy)
and that direct “for hire” copyright is protected for even more as is specified
in 17 US Code, section 302c:
“In the case of an
anonymous work, a pseudonymous work, or a work made for hire, the copyright
endures for a term of 95 years from the year of its first publication, or a
term of 120 years from the year of its creation, whichever expires first. “
Can you imagine? 95 years
after first publication or 120 years after creation. Mickey Mouse, is it
cinematographic creation or comic strip publication? Which one will end first?
It made its first cinematographic appearance in 1928. It will fall into the
public domain only in 2048 as a cinematographic creation, and in 2025 as a
comic strip character that appeared as such for the first time in 1930. Luckily
it is this latter date that should be the good one: still 15 years to run, and
you can be sure Walt Disney is going to make these years go as slow as possible.
These producers have had the upper hand on the subject in the world and meet
with very good listening ears in the European Community, in the US Congress and
even in the World Intellectual Property Organization. The interest of the
authors is to keep control over their works and what is done with them; to keep
control of their moral right over their works; and to get some decent income
from the circulation of their works in royalties in proportion to that
circulation and at a level that should be a lot better than the miserable 5 to
10% of the sales.
This being said it is
important to go back to basics again as for the objective of this copyright
when it was instated by Queen Anne in 1710 to the sole profit and under the
sole control of the author. Let’s start with the US Constitution and their
definition of the powers of Congress. One of these is to instate and manage
copyright and patents, that is to say intellectual property, both artistic and
industrial:
Article
I Section 8 | Clause 8 – Patent and Copyright Clause of the
Constitution. [The Congress shall have power] “To promote the progress of
science and useful arts, by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries.”
I will not quote all the
successive copyright laws (first ones in 1791). That would be fastidious and
useless. The purpose of this copyright is “to promote the progress of . . .
useful arts” and the means is to “secur[e] for limited times to authors . . .
the exclusive rights to their respective writings . . . “ This being a
constitutional provision it can only be changed by an amendment to the
constitution that requires a two third majority to be passed and a three fourth
majority to be ratified, in other words that is practically impossible on a
subject like this one. Remember the 13th amendment abolishing
slavery was passed by ONE vote in Congress and ratified thanks to the State of Louisiana that stepped out of the Confederation before
the end of the Civil War to rejoin the Union . An
amendment to the constitution has become a miraculous enterprise today in the
deeply divided political jungle in the USA . Copyright is there to stay
both in its purpose and in its duration as set by Congress and the latest
duration was endorsed by the Supreme Court when it ruled on it when the case
against it was brought to them a few years ago.
What comes up then in Leval’s
article and in the common law set by the jurisprudence of courts is rather
simple and I am going to enumerate these elements. First what Leval calls the
“statutory factors.”
“1. Factor one – The Purpose and Character of the Secondary Use.”
It is clear that the Secondary use has to have a different purpose from that of
the primary use. If a piece of entertaining music is used to be mashed up into
another piece of entertaining music, it is obvious the purpose and even
character are the same. Aufderheide and Jaszi specify this point as follows:
“. . . a wide range of reasons
for people to repurpose copyrighted material: satire and parody, commentary
both negative and positive, as a trigger to discussion, as illustration or
example, incidental use, diaries, preservation, and pastiche/collage – or as
many now called it, remix.” (page 119)
The fundamental word in that approach
is “repurpose.” And we are talking
common law here: the repurposing element will have to be assessed by a court if
need be. It is not defined by the law itself in any detail. That’s what a
common law judicial system is: the code law only defines a general frame tnat
has to be in conformity with the constitutional law which is basic. And then it
is the jurisprudence of courts, hence common law, that defines all the fine
print of the interpretation of this code law. The Supreme Court is the final stop
and can only deal with the constitutionality of a legal provision in the US
Code, what’s more the federal constitutionality of such and of any state law in
any State Code, and of any court decision. But remember the Supreme Court has
to be asked to rule on a case that has run all levels in the judiciary system,
and the Supreme Court will first decide if they want to rule on the case. They
are not obliged to rule on any case presented to them.
“2. Factor Two – The Nature of the Copyrighted Work.” This factor
is difficult to understand. It concerns the genre with a strict opposition
between documentary or factual reportage on one hand and fictional works on the
other hand. In fact these two are the extremes of a continuous shift from one
to the other and then the court considering a case that comes to them will have
to assess the position between these two extremes, hence the degrees of
factuality and fictional creativity. We also have to consider that what is
protected is the form of the work itself not the ideas, hence the words
themselves in a poem or a novel and not the ideas. Things become more
complicated when we are dealing with visual or auditory arts or media. It is
easy to see that the word “the” is not protected at all and if “to be or not to
be” would be protected if these words were modern, the individual words
themselves could not be and phrases like “be or be not” in the context “be or
be not! See how I care!” could not even be thought as being protected. But the
note “C” played by a trumpet is a lot more complex. The note itself is not
protected, but the sound of the trumpet produced by a trumpet player who has
his own style and his own trumpet is going to be protected. And you have the
same thing, though even more complex with images. We come here to the concept
of plagiarism which is extremely difficult to pinpoint and identify. How many
identical notes can be considered as plagiarism? One particular performance of
these notes is protected against sampling and yet what is fair use if someone
did sample them and used them? Then we go back to the first factor.
“3. Factor Three – Amount and Substantiality.” The amount can be
extensive but it has to be the exact necessary amount to reach the purpose of
the secondary use: in other words you must not quote for the pleasure of
quoting but to make your point and nothing but your point. Too short might not
hit the target but too much would be over killing and then you will step out of
fair use.
“4. Factor Four – Effect on the Market.” This factor is also
difficult to evaluate. Essentially it would not be fair use if the secondary
use completely dried out the primary commercial use and hence income of the
copyright holder. But there are other elements to be taken into account. A
secondary use can even enable the primary use to get a new or renewed life.
This has to do too with the image of the author of the primary use, hence with
moral right. We all know that an author can disclaim his own paternity of an
adaptation of a work of his and win, even a lot, in damages. We all know the
case of “The Lawnmower Man” by Stephen King who denied his paternity of the
film on the basis that the film was far too far away from his original short
story.
Aufderheide and Jaszi add four
more elements to be taken into account. The first one is just the recording and
emphasis on the RE-purposing of the
secondary use. And this new purpose has to be different from the original one,
clearly different. Then they insist on the
appropriateness of the amount of copyrighted material used in the derived
work. The third one is a reference to a concept that is rather fuzzy: “Was it reasonable within the field or
discipline it was made in? . . . What normally
acceptable practice is.” (page 25) That means there is no universal rule,
but there are many practices that change from one field to another: it is not
the same in graphic arts and in music, and it cannot be the same. It is not the
same in archiving and in musical creation, in teaching and in satirical drama.
Only the professionals of each field are able to define what is “normal” in
their domain. And even so. If you want to show the rhyming and rhythmic
patterns of a poem, you have to quote the whole poem. If on the other hand you
want to show the special use of one metaphor in that same poem, you will
probably not have to quote the whole poem but only the relevant elements. The
last element they add is “good faith
and this is immediately asserted as requiring full attribution and credit to the works and authors quoted in the
secondary use. This is, without the authors of the book ever calling it by its
own name, the moral right of any author, composer or artist of any sort.
The book then gives a procedure
to establish a code of best practices in a given field. It has to come from the
users and creators of this field, not necessarily the copyright holders when
these are the producers. It is easy in some domains, but it is still very
difficult in the fictional audio-visual field and in music. A consensus has to
be found among creators and users and then this code of best practices of fair
use in one particular domain after strict examination of it by lawyers and
organizations engaged in that kind of legal action and reflection has to be
publicized and progressively promoted to a general consensus with the producers
as copyright holders. The main argument with them is that they can become fair
users in their own productive work in some clear cut situations, which will
enable them to simplify their managerial work and even reduce their costs
provided they allow other producers and professionals in their field to do the
same with their own productions. It is give and receive, it is loss on one side
and gain on the other side, and in the end they have to become convinced that
the simplification of their work is worth some loss especially since it will
also correspond to some economies that might even be of scale.
Can this procedure which is
typically American be transported into Europe ?
My answer is yes but with a tremendous amount of difficulty because of the
strictly different methods used in Europe
which is essentially a legal system based on legal codes hence on code law and
on parliamentary acts. Right now a reform of authors’ rights legislation is
being discussed in Brussels and Strasbourg but their aim is not to bring
everyone in every field to a consensual agreement on what fair use could be,
but to set up an ever growing lists of exemptions (that’s the word used in
American legal language on the subject, and not exceptions) that are for many
of them unrealistic. We may understand that hearing-impaired people may have
access to some visual description of what they can’t hear, but to provide all
handicapped people with the same privilege is in fact making it free for
everyone because it is no longer ethical.
In the same way the false debate
around what Europeans call “transformative works” in which they include mash-ups
and that they define as a work in which the original fragments are no longer
recognizable by the wide public (without asking the question whether this wide
public knows or is able to identify the works from which these fragments are
taken), hence inciting the secondary use “creators” to forget attributing or
crediting their “works” to the original artists, hence to negate the moral
rights of these original artists, this false debate is trying to make us
believe that the inventor of mashed potato can be credited with the
invention of the potato itself. In other
words for them Parmentier is the one who invented the potato in the world if
not universe, of course my dear Dr. Watson. It is then purely the negation of
any fair use and its replacement by some kind of long list of exemptions that
then become full exceptions since it is not fields of practices where authors’
rights are suspended under very concrete and clear conditions, but fields of
activities where authors’ rights are purely and simply gotten rid of, fields in
which there exists no protection any more, and consequently no incentive to
create any more. It thus becomes a dangerous situation against creativity
itself.
My conclusion is clear. Copyright
was invented “to promote the progress . . . of useful arts” by providing the
authors with an incentive in the form of a possible commercial income. But if
that copyright is negated or limited in some fields in the name of enabling a
wider public to have access (meaning unpaid for access) to more works then the
incentive to creators will be dropped and creators will have to move to other
parts of the world or to other practices that will lock up their works in some air-proof
profitable closets with extremely limited access. The best works will then
remain unknown for long periods of time of the public, general, wide or
whatever. Europeans are producing today with their legal limited mind a
generation of creating similar to Arthur Rimbaud whose main poetical work (“A
Season in Hell”) remained unknown for a full century and was rediscovered by
pure accident and luck. And all that is only motivated by political
considerations.
This book is thus very important
for Northern America but fair use is systematically perverted into a completely
different perspective and for a completely different project by some
anti-copyright and anti-authors’ rights lobby in Europe. But that is not the
only field where Europe is misguided since they want to make open-access
publication compulsory for any piece of research that has benefitted from
“some” public money without any specification of the amount nor of the nature
of that public money. A primary school teacher who is living thanks to the
public money paid by the state for his teaching and who writes in the middle of
the night some articles on the genitive in the Sanskrit Vedas could not do it
if he did not have his public salary. So his research is benefitting from
public money and would have to be published under open access, hence without
any incoming financial proceeds for the researcher who not even considered as a
researcher deserving some “salary” for his work, and anyone could quote it without
any obligation in return, financial or moral. Europe is standing on its head,
its feet up in the air “pedaling in the sauerkraut” as the French would say,
though some don’t want to appear anti-German so they “pedal in the mashed
potato” of our friend Parmentier. That will produce mashed sauerkraut and
sooner or later mash-up sauerkraut. Bon appétit!
Dr Jacques COULARDEAU
# posted by Dr. Jacques COULARDEAU @ 12:22 AM 
