Why a fair use exception is probably not such a good idea
May 7th, 2007 by Tobias Schonwetter, iCommons legal columnist
This month, iCommons’ resident copyright columnist, Tobias Schonwetter, explains what troubles him about the fair use doctrine and why the doctrine is less user-friendly than commonly assumed.
At a recent conference in the Caribbean, I was given the opportunity to express some of my views on copyright-related matters. Naturally, a lively discussion took place and subsequently a number of people approached me to share their ideas and opinions with me. It was during one of these talks that an Asian delegate told me that his country was about to replace the present set of specific copyright limitations and exceptions with a so-called fair use provision.
In a nutshell, fair use is a copyright exception in the US Copyright Act which allows the reproduction of an otherwise copyrighted work without the copyright-holder’s consent in certain circumstances. The exception is fundamentally based on the belief that not all copying should be banned in order to facilitate socially important endeavours. In this way, fair use safeguards (among other things) the fundamental right to free speech and freedom of expression, which is widely recognized as one of the most fundamental principles in a civil society.
The utilisation of a fair use provision instead of specific exceptions is a popular demand from user rights activists and campaigners for the public domain these days - and the Asian delegate had clearly assumed that I was part of this category after what I had said at the conference. Consequently, he was astonished and terrified when I told him that I would not necessarily recommend such a move for reasons which I am going to explain below.
In the days following our discussion, I often recalled the conversation and eventually spent a good deal of the remaining conference time discussing this issue with a variety of people. In the course of these conversations, I learned two things. Firstly, the fair use doctrine is often confused with the concept of fair dealing – a related set of copyright exceptions contained in the Copyright Acts of numerous Commonwealth legislations. Secondly, a general tendency exists to glorify the concept of fair use – regardless of its considerable disadvantages.
So, first of all, the concepts of fair dealing and fair use are not synonymous, they are, actually, analogous! Both concepts share, without a doubt, the same fundamental idea of permitting uses of copyrighted works which are considered fair. However, the concept of fair use is, in general, much broader since it is not confined to specific purposes – for example research, (private) study, criticism, review and news reporting. Furthermore, some of the uses permitted under the concept of fair dealing only pertain to certain kinds of protected works. By contrast, the fair use doctrine applies to all kinds of protected works.