Recently Public Knowledge, & Jennifer M. Urban from the Samuelson Law Technology & Public Policy Clinic at UC-Berkeley, released the first reform ideas for copyright legislation focusing on the principle of fair use (CRA).
The idea is very simple. Fair use is embodied in Section 107 of the copyright act. Section 107 is short provision that as added to the copyright act in 1976 codifying the common law principle of fair use in the statute directly. As new uses and technologies have arisen the statute has not been updated to deal with, new technology, common social norms or recent common law developments. PK is suggesting that the language be updated by adding a few words to the opening clause that would clarify certain uses as more likely to be fair use.
It is important to note that the opening clause in section 107:
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 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:
does not list uses that are guaranteed to be fair use just “explicitly favored uses” added to clarify “for courts and diminishes uncertainty for copyright holders and follow-on users.” To determine fair use a court still must go through a four factor balancing test, but may be more likely to favor the use.
The CRA proposes the addition of three more uses: incidental uses, non-consumptive uses, and personal, non-commercial uses. It is worth looking at each of these more closely:
Incidental uses is a background use of a copyrighted work where to focus is where the copyrighted work is not the primary focus of the use—”for example, capturing music playing over a radio when filming a family moment.” This would cover recent cases like Lenz where an over zealous DMCA takedown removed a family video with 30 seconds of a Prince song in the back ground. This exception is fairly strait forward and not likely to cause a lot of controversy.
Documentary film makers struggle with this type of use all the time, if a cell phone ring in the background while interviewing someone is it really necessary to clear rights and pay hundreds or thousands of dollars for an unintentional use, no.
Non-consumptive uses are uses that “do not directly trade on the underlying creative and expressive purpose of the work being used.” These are uses such as copying and searching a document to create an index or to count the gender ratio of pronouns used with respect to different professions. These use are NOT about reading a creative work or consuming them but in finding out information about them to better provide information about them such as search relevance. I would call this the data mining exception. If a search and rescue unit figures out how to cull twitter to find out where the worst damage is during an earthquake we do not want copyright preventing this use. This use is designed to be directly in line with the intent of the copyright act to “promote the Progress of Science and useful Arts” while also realizing that to get to or to use unprotected data & fact we may have to make copies along the way.
Personal, Non-commercial uses is the uses we all make in our home when we back up media copy a TV show or a streaming video. This is a use right I grew up with when I used my dad’s Beta machine (he was an early adopter it took him years to realize VHS had won the home video standard wars) to tape square one TV to replay later. Or when the family fast forwards through previews we did not like on a rented movie. This exception is likely to be the most contentious in the recommended legislation. Content companies have done everything in their power to try to control how I use copyrighted works in my own home. To watch a movie on Blue Ray it take over my home system and tries to force me to watch things I do not want to expose my family to or waste my families time with.
Overall these suggestions are rather moderate in nature. They take the best of recent case law and current best practices to update the statute while preserving users rights. This is a good start on the road to fixing copyright law.
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Disclaimer: I worked at PK this last summer as a Google Public Policy Fellow and attended some of the meeting related to the Copyright Reform Act.