The Government Is Putting Fair Use In Danger

    August 7, 2012
    Zach Walton
    Comments are off for this post.

Fair use – what do those two words mean to you? If you’ve been following copyright law at all lately, you probably have heard the term thrown around a few times. It’s considered by many to be the most important feature in copyright law, so why is it always under attack?

It would be unfair to say that fair use is directly under attack. Even the worst Hollywood executives understand fair use and do nothing to directly impede it. What bills and treaties like SOPA, PIPA and ACTA did was weaken fair use to a point where it didn’t matter anymore. Thankfully, those three laws were killed before they could change everything for the worst. Unfortunately, the most secretive treaty of all – TPP – just revealed its intentions for fair use, and it’s not good.

Is fair use a concern to you? Are exceptions to copyright law something worth protecting? Let us know in the comments.

Before we get into that though, it’s important to understand why fair use is so important. As an example, here’s a YouTube parody video based on the popular video game, Skyrim:

If you’re not aware, this video contains a lot of copyrighted content from the game’s developers. That content can not be used without permission from the original copyright owner under normal conditions. Under fair use, it’s totally legal and encouraged. You see, fair use is an exception in copyright law that allows people to use copyrighted materials if the content in question is a non-commercial parody or uses the content for criticism, commentary or education.

YouTube is actually the perfect example of fair use. The entire Web site is pretty much dedicated to it with thousands of video creators using other people’s works in ways that fall under fair use protections. The young girl singing her favorite Justin Bieber song into a camera is fair use. The political commentator pulling clips from CNN and Fox News to make a point also falls under fair use.

The importance of fair use can not be understated. That’s why the recent leak from the fair use section of TPP has proponents so concerned. After promising that the revised TPP would contain strong fair use protections, the text of the bill actually restricts fair use. Here’s the text of the treaty acquired by KEI Online:

1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

As TechDirt points out, the leaked section on fair use actually does nothing to defend fair use or increase its reach. It pulls the text from the three step test that was introduced to the Bernes Convention in 1971. Here’s the text from the Berne’s Convention treaty:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

While the actual text doesn’t seem all that bad, it’s the interpretation that counts. When you leave the legality of fair use up to “not unreasonably prejudice the legitimate interests of the author,” things are going to get messy. The problem is further compounded by a Supreme Court ruling in Campbell v. Acuff-Rose Music that put the burden of proving fair use on the defendant. It’s so much easier to prove that a work is copyright infringing then to prove that it’s fair use. Thankfully, in the aforementioned case, the defendants were able to prove that their work was valid under fair use. One victory does not mean that all will be like that, and the rules of TPP make it harder for people to prove fair use.

What’s interesting is that only the United States and Australia are behind these excessive measures. TPP is being debated and written by a number of countries in the Pacific, but only the U.S. and Australia are behind the worst parts. In fact, countries like Brazil, Chile, Malaysia and Vietnam want to incorporate strong consumer protections into TPP that would strengthen fair use and allow consumers to own their digital content.

[NZ/CL/MY/BN/VN propose; AU/US oppose93: 1. Each party may provide for limitations and exceptions to copyrights, related rights, and legal protections for technological protections measures and rights management information included in this Chapter, in accordance with its domestic laws and relevant international treaties that each are party to.]

Do you think TPP should strengthen its fair use clause? Or are the current protections enough? Let us know in the comments.

Earlier, I used a Skyrim parody video to illustrate fair use. Unfortunately, we live in a world where real world examples of fair use and essential freedom abuses are easy to come by. We recently reported on a YouTube video being taken down due to copyright violation notices from CBS and the United States Department of Homeland Security. The main concern here is that the video, which only contains the ramblings of a conspiracy theorist, was taken down by a brach of the government.

The secondary concern is that the video falls under fair use. Even if it was the insane ramblings of a conspiracy theorist; he was using copyrighted content, a Sky News broadcast in this case, to provide commentary on world events. Such a case falls under fair use and copyright holders should know that. While there’s something to be said on how YouTube gives into copyright pressure too easily, it would only get worse if fair use was restricted.

While the changes to fair use are bad enough, we still don’t know the extent of the damage. TPP’s secretive nature has led to it being one of the more problematic treaties of our time. Fortunately, things can change for the better. If Sen. Ron Wyden has his way, TPP would be open for debate in Congress and among the citizenry. That’s really all we can ask for.

Do you think fair use is in danger from TPP? Or are advocacy groups blowing it out of proportion? Let us know in the comments.

  • http://asaprental.com Brian

    My business was built using the Internet. The thought that a foreign country can consider messing where they do not belong makes me nervous. Why can’t Americans get behind the concept of free speech?

    • http://www.belfast-architects.co.uk Alan

      Brian well said. The impression I get of the USA is of an increasing oppressive state that favours the interests of a few (corrupt or otherwise). A state that does not care much about the long term consequences of its actions.

      It is deeply worrying.

  • Jeremy

    The author has not articulated anything – at all – that suggests fair use in the US will be impacted at all by the TPP. It’s all hysterical linkbait hyperbole.

    • http://www.webpronews.com/author/zach-walton Zach Walton

      Fair use won’t be impacted just yet and it still has a chance to come out unscathed from TPP. The problem all comes from interpretation. Like I said, the three step test and Fair Use laws in the U.S. put the burden of proving fair use on the head of the defendant.

      It’s so easy to prove copyright infringement in today’s legal system. It should be made easier to prove fair use than it is right now. If the USTR has its way, it would make sure that the legal system is more sensitive to the needs of copyright holders instead of the consumers who need protection.

      • Jeremy

        Zach – your response still doesn’t explain how reproducing US rules for fair use in the TPP would put “fair use in danger” – as you’ve screamed in the headline. With respect to Americans, the interpretation pre- and post-TPP would be exactly the same.

        It is exceptionally easy to prove fair use if the use is actually fair. It requires no discovery costs and little to no expert testimony. Generally, a judge can handle it from the bench. Proving an infringement claim is actually far more difficult.

        You really should learn more about this issue and consult with a broader range of sources before using this high-profile platform to express your opinion.

        • http://www.webpronews.com/author/zach-walton Zach Walton

          It’s a matter of implementing the U.S. definition of Fair Use throughout the rest of the world. I still feel that our definition of Fair Use is pretty limited. The U.S. would use TPP to force other countries into implementing our own copyright laws into their own. That would only hurt their developing economies as they try to find a foothold in multiple arenas including content creation.

          I’m not advocating that people steal, but fair use should be made broader than what it is currently defined as in today’s legal system. Other countries have pretty broad rules when it comes to fair use and the U.S. should be adopting those terms instead of forcing everybody to go along with whatever else is in TPP.

          You are right, however, in that TPP wouldn’t do much damage to how we perceive Fair Use in the U.S. It would have effects on other countries and that would in turn damage the U.S. This is a trade treaty and we have just as much to gain as the other signatories. Likewise, we have just as much to lose. By restricting their developing economies, we only serve to weaken our own. A broad and open Fair Use policy would only do good.

  • Josh Hobbs

    Zach, Nice job on the detailed and thorough article.

  • http://ocalainsurance.com Ocala

    How is the all powerful google weighing in on this, if their hugely profitable property youtube is taken down through new legislation, I would think we would see some corporate millions spent on that lobby. Isn’t big business supposed to be running everything behind the scenes anyway?

  • http://www.ssrichardmontgomery.com ron

    Leave things as they are or the only people that will benefit are lawyers.

  • Steve G

    There is true irony when companies like Viacom argue against fair use and want tighter copyright laws and then have shows on Comedy Central such as the The Daily Show and The Colbert Report which are pretty much made up of mostly fair use content. It’s like, do those executives at Viacom even realize there is a 10 foot pole up their behind?

    • http://www.webpronews.com/author/zach-walton Zach Walton

      As far as fair use is concerned, copyright holders only like to admit its existence when it directly benefits them. They hate it when somebody uses their product as a foundation to create an even better product. Case in point: Numerous music labels want to destroy fair use protections for those who create mash-ups.

  • http://www.easyguitarguylessons.com Buddy

    In my opinion, we should be loosening rather than tightening the reins of “fair use”.

    I have to be so careful not to include so much as a recognizable lick, note or riff in the video guitar lessons on my website Easy Guitar Guy Lessons for fear of being sued.

    As a musician I know a lot of artists personally who would happily give me permission to play and teach their songs for nothing. But even though I would put a link to the download on itunes where my visitors could buy a recording to practice to or advertise a songbook where they could get the sheet music; the publishers won’t allow it.

    As the other poster mentioned; it’s about big business and greed. As a results art and free expression suffer.

  • http://www.GlitzyGardenDecor.com JEASongs

    As a songwriter, I think Fair Use can go too far. I’ve worked hard, paid for instruments, education, demos, gear, recording studio and time…all the hidden costs no one realizes. Artsits pay for touring, lights, buses, trucks, gear, insurance, stage clothes, etc. If everyone could use a song without paying for it, then what happens to our paychecks? Do you want a majority group telling you whether you can get paid for your hard work? Is it fair to promote your work and get paid for it, but the vehicle (a song) doesn’t get compensated as you advertise your products/hard work, etc? The word “Fair” needs to be analyzed. I’m all for use … just pay me for it.

    • http://www.captaincyberzone.com Cap’n Cyberzone

      Comrade, “Fair” means to share with those who lack your talent. It’s “Not Fair” you have talent and work hard and horde the State’s share.

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  • http://www.caribbeanexplorers.net Kevin Alderman

    First, we are copyright holders, and therefore are qualified to weigh in on this debate. I have no issue with someone using parts of our work for a personal video, compilation, etc. As artists, we create our work so that others can see it and enjoy it. Do we want to get paid for it, sure. But if you spend your time chasing after a dollar instead of focusing on creating quality work, your quality will suffer and your payments will drop. It is said that the greatest form of flattery is imitation, what more could a songwriter ask for than someone to put their wedding or other personal pictures to his music? And who cares if 5000 people view this video creation, when we are looking for millions to see our work? Do you think that just because my pictures are in a video with your song that we wont recognize the song? Really?

    An artist should be first and foremost concerned with creating the art, and later getting something for it. If you chase after money you will never catch it, but if you become the best at what you do, money and success will find you.

  • http://sites.google.com/site/justsayingmypiece/ Charlie

    Hmmm…I know they say that “imitation is the sincerest form of flattery” (now…is that phrase ‘copyrighted’ by anyone? If so, I might have just violated their rights, no? Hmmm…)…and if imitating (or copying) another’s works for personal, non-commercial use is “fair use”, I’m ok with that.

    I create hundreds of potentially “copyrightable” (is that even a word?) things, including written articles, graphics, music, lyrics, poetry, videos, and much more…most of which I intend to try selling online (or other ways). I don’t mind someone using things for personal, non-commercial use; but I guess I would have issues with someone outright stealing things for financial gain. Is that GREED? It might be, though I think it’s “only fair” that I would be compensated somehow, y’know?

    It’s a very sticky topic, for sure. While most “artists” might not object to others ‘imitating them’, they’d probably not appreciate it if others literally stole their stuff…I think that’s “fair”, don’t you? I’m just sayin’…