Monday, June 6, 2011

Fair Use Part 2: Subtleties

Now that you've had the time to digest the basics of fair use, it's time to talk about some common misunderstandings and problems that arise with regard to this aspect of copyright law. As you might have noticed from last time, fair use a complex issue, one in which various concerns must be weighed with no guiding standard as to how much impact each factor should have. Even more problematically, US courts have stayed away from fair use cases for the most part. Very few actually reach a judge, and only four fair use cases have been heard by the Supreme Court. As such, there is very little jurisprudence to clarify the law. As such, fair use is a ripe subject for confusion and debate. Let's begin with the most crucial clarification.

Fair Use is not a right
While one might hear talk about “fair use rights,” there really is no such thing. The National Information Infrastructure White Paper on Intellectual Property (released Sept 1995; for more information see: ) was quite keen to point out exactly that fact. Instead, fair use must be understood as an affirmative defense. So, what's the difference? Well, the real difference is a matter of presumption. If fair use spelled out a series of rights, then the audience presumably has the right to use copyrighted material under the specified conditions. In such cases, infringement suits must show that the use somehow falls outside the scope of the guidelines. As an affirmative defense, fair use is a way of excusing an infringement on legally recognized grounds. In other words, any unauthorized use is presumed an infringement, but the infringement can be excused on certain legally recognized guidelines.

If that difference is still too subtle, think about it as a difference in the burden of proof. If fair use were a right (or a collection of rights), then the copyright-holder would have to proof that the use fell outside of the scope of those rights. As an affirmative defense, any use of copyrighted material is presumed to be infringing, and the defendant would has to show that, as a matter of fact, the use falls within the guidelines. In the former case, the burden of proof is really on the plaintiff; in the latter case, the defendant must show that the use was in fact fair, and failure to do so automatically results in a finding of infringement.

While fair use is often discussed as check on copyright, something to preserve the public good against copyright monopolies, it is actually much weaker than that. As an affirmative defense, fair use has too little force to really protect any public good. While educational use is supposed to be fair, Georgia State is involved in a suit over course reserve texts (full story here: ). If anything counts as an educational use, I would expect course reserves would, but some major academic publishers disagree. Furthermore, the guidelines the publishers would like to impose (available from this story: ) are draconian, to say the least. Speaking of draconian, it's is likely high time we move on to another clarification.