Dr Jacques COULARDEAU

WILLIAM F. PATRY – PATRY ON FAIR USE – 2014 EDITION

This book is basic on all copyright and author’s rights questions because it deals with the concept of “Fair Use” which is basically the possibility for the public not to abide, as for permission and payment, by the copyright of a copyrighted work under some conditions. To keep up with change and evolution the book, or rather the publisher, proposes to subscribe to regular updates.

The book is essential because it goes beyond the purely legislative field and the various laws that have established fair use and its four criteria: 1- Purpose and character of the use; 2- The nature of the copyrighted work; 3- The amount and substantiality of the taking; 4- The effect upon the potential market for or value of the copyrighted work. Plus what is humbly called “Other considerations.” Beyond this US situation the book also takes into account international law and various treaties the US have signed in the field of copyright, and more generally intellectual property.

But what is essential in this book is that it systematically considers the jurisprudence in the field, what is often referred to as common law. Indeed that is important since there are hundreds of cases that have been ruled in court at all levels, including the Supreme Court of the US, and these hundreds of rulings define the exact interpretation that can be used in the field to define fair use or to justify your reference to fair use to cover your particular use of a copyrighted work.

Note here patents are not concerned because they are protected by commercial laws and using a patented invention without permission and without paying for a license is a plain commercial crime: at international level there is a very important set of cases involving the big stakeholders of industrial patents and the rulings have most of the time been in favor of the original stakeholder or patent-holder.

This book, and this field of common law centering on copyright and artistic and literary intellectual property, should be vastly studied in the world for two reasons. The first one is that it is said copyright does not protect an author’s moral rights. It is true the legislative and constitutional dispositions in the US code do not, but authors’ moral rights are defined and protected by the common law dealing with fair use. In fact moral rights can be concerned by the very four points summarized before.

The second reason is the existence of more and more treaties in the world establishing some kind of free trade. These treaties also concern intellectual property both under patents and under copyright. The Europeans are particularly concerned who insist in the transatlantic negotiations to set artistic and literary intellectual property apart in the name of diversity and in the name of the necessary “exception” that has to be recognized and legally established for this field of artistic and literary activities.

When you know the importance of music on the Internet, you can see there is a double problem: the looting of the field by pirates of all sorts; and the necessary access for everyone in the world to the artistic and literary production of the whole world, which is far from being the case, still.

But if you consider the cinema, the situation is even more complex because the cinema implies in its own existence, or even concept, that films have to reach the whole public in the world. And we have a real problem when many films are just not reachable, because they are locked up in some fund, because the existing copies have not been digitalized, because they are restricted to one zone in the world, because they are in one particular standard that requires a special machine to read it. The best case in France is a French-produced Blu-ray that I could not read on my Blu-ray reader because the latter was imported from the US. It only happened this one time since my reader is the universal Sony reader but it did happen. In France with a French-produced Blu-ray.

We could of course consider another field which is the field of live stage productions. Right now, if a stage production is not recorded in a way or another at either one of two levels or both, sound an image, in a digitalized form that can be uploaded in a way or another to an international providing service, 99.9999……% of the people in the world will never be able to see it, to listen to it, etc. That’s the other meaning of “Fair Use” that this book does not consider but implies: a work of art or literature or any sort is fairly used when it can reach all its potential public in the whole world in conditions that protect the rights of all the artistic stakeholders. That understanding of “Fair Use” is the one that is implied by all international commercial treaties that should all be Fair Trade Treaties respecting the rights of all the parties of each product that can thus freely circulate, meaning circulate with no political or administrative limitations but under normal commercial circumstances, hence at a price. All the time, even if that price is $0.01.

This is a book you have to have if you want to get through Fair Use in the standard meaning, both using it for your own work on one hand, and on the other hand respecting the rights of all authors, creators, producers and interpreters involved in the particular work you want to use.

Dr Jacques COULARDEAU