We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.
Today’s installment is everyone’s favorite copyright exception, fair use. There’s much that can be said about fair use, but I will use a true story (in order to ultimately focus your attention on something else).
Early in my career as a copyright librarian, I participated in a panel on fair use with other librarians. This was quite a while ago, and librarians were as not familiar with fair use as they are now. From the audience members, there was a lot of griping and groaning. “Fair use is too hard. What if I go to jail? It’s easier to not bother?”
One individual suggested that if libraries had more funding, then there would be no copyright problems because we could afford to pay permission fees. But when other people were nodding their heads in agreement, I was shocked, shocked that librarians seemed so reluctant to use the most prominent of all of the hard-fought rights and privileges in the Copyright Act to provide maximum access to information to their users.
I explained that even if library budgets were bottomless, there is no reason to pay a permission fee when your use is fair. Indeed, even if a license is available, you do not have to use it when you have before you a fair use.
Fair use has been called a safety valve, a transformative use, ambiguous, and a necessary exception to copyright law to enable research, commentary, criticism, innovation and learning. I believe fair use is all of these things, but in library-speak, I like to talk about fair use as enabling the “free flow of information.” Not free—we pay millions for content every year— but free flow.
Knowledge and creativity cannot advance if people are unable to build on the work of others. So one needs access to information, but also one needs a creative process that is not burdened by fits and starts, censorship or fear. Fair use is the exception that most supports freedom of inquiry and expression. Now we’re talking about intellectual freedom and the First Amendment, top dog principles for librarians.
We must never accept mandatory licensing regimes, because by their very existence, fair use is weakened. By accepting such licensing regimes, you are agreeing to pay even when uses are fair. You will pay a fee that does not necessarily go to the original creator or rights holder. You will have to ask for permission for any use of a protected work. You will agree to inhibit the spontaneous flow of inquiry, innovation, and learning, and ultimately limit the creation of new works and new knowledge that benefits the public. And you will be compromising the First Amendment.
The moral of this story is that fair use enables intellectual freedom. Of course, pay the royalty when your use is not fair, but be wary of the mandatory licensing systems that are supposed to make your life easier because you won’t have to think about fair use.
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