Fair Use Week: Let’s celebrate free speech!

Originally posted at www.digitalinfolaw.com/blog.html

by Gretchen McCord, JD, MSIS
Digital Information Law

This week is Fair Use Week, an annual celebration of the doctrines of fair use under U.S. law and fair dealing under the laws of many other nations.  Both provide limitations on, or exceptions to, a copyright owner’s rights that allow others to use protected works without first obtaining permission.

I am going to take this opportunity to point out the role of fair use to a free, democratic society.  If you haven’t thought of this connection before, I hope you will take a few minutes to do so. 

What fair use is

In the U.S., fair use is the most important legal tool for ensuring that the application of copyright law meets the Constitutional purpose of the law:  To promote the growth of Science and the Useful arts.

The Constitution gives Congress the authority to make laws that meet this purpose by granting authors rights in their works, as incentive to create, but with limitations, so that others can freely use those works in certain situations so that they can build upon those works, either directly or indirectly, and themselves create.

Copyright is all about finding and maintaining that balance between the copyright owner’s right to control use of protected works and the public’s right to make certain uses of those works without the owner’s permission.

The ultimate question of fair use asks: Would allowing this use go further towards promoting the goal of copyright law than would disallowing the use?

Why fair use is critically important for the right of free speech

About a year ago, I discussed in a blog posting the revelatory experience I had in attempting to explain why the decision in the Google Books copyright infringement case was such a good one – not just for libraries and educational institutions, but for society as a whole, for creators and copyright owners as well as for users of protected works.

It is not an exaggeration to say that fair use is just as fundamental a right as those expressed in the Bill of Rights, that, like our other Constitutional rights, fair use allows us to be American.

We as a society place tremendous value on every individual in our society having access to knowledge – not just the opportunity, but the right, to read a newspaper, to buy books or borrow them from libraries, to watch television and movies, to listen to music, to view masterpieces of the fine arts without having to travel to a far-away museum.

We greatly value our First Amendment rights to share our own knowledge and to discuss and debate our differences: to discuss a news item, to write about a political issue, to teach others, or to share our religious views.

A strong doctrine of fair use is an absolute necessity to absolutely protecting and enacting these rights.  Copyright owners have the right to prohibit others from making copies of their works, distributing copies to the public, creating derivatives of their works, and performing or displaying their works publicly.  If the law did not provide significant limitations on those exclusive rights, copyright owners would have complete, or near-complete, control over uses of their works.  Fair use is by far the largest of those limitations (and the only flexible one).

Without fair use, a politician could prohibit the dissemination of a speech, a researcher could prevent critics from quoting her research, an artist could charge a museum for every visitor who views his painting, and a publisher could force a school to pay each time a child read a book.  (Of course, that latter one is not too far from reality, in the current world of e-books – a topic for a different blog post.)

Without fair use, entire genres of music – jazz, rap, hip-hop – would cease to exist, journalism would be a mere shadow of its true profession, and academic fields like art history and modern literature study would greatly diminish if not disappear.

We are a society that values education, individual participation in government, and free speech.  Without a healthy doctrine of fair use, we risk losing those rights.  Maintaining a healthy fair use doctrine is an ongoing struggle, but it is one we must continue.