World’s First Fair Use Day Attracts Interest – And Signs that Congress Doesn’t Understand It

Broadband's Impact, Copyright January 13th, 2010

, Deputy Editor, BroadbandBreakfast.com

WASHINGTON, January 13, 2010 – The consumer advocacy group Public Knowledge on Tuesday hosted the first-ever World Fair Use Day. “Fair use” refers to the defense, under the copyright statute, that permits individuals and businesses to make use of others’ copyrighted material under certain circumstances.

The keynote speaker was Rep. Mike Doyle, D-Penn., who told the attendees how Congress as a whole sees the issue of mixing and mashups – they don’t understand it.

Additionally, Doyle defended the rights of artists and reaffirmed his support of the doctrine. He also warned about actions being taken by the U.S. trade representative in the Anti-Conterfeiting Trade Agreement negotiations. And he acknowledged that many congressional officials want the process to be more transparent:

“I join with Senators Bernie Sanders, Sherrod Brown in wanting deliberations to be more public, and I’m very interested in hearing the answers to Senator Wyden’s letter from last week asking the US Trade Rep to respond to allegations like the one I just outlined. If ACTA is to succeed – and it might – the United Kingdom has it right when it says that “transparency is crucial to ensure the legitimacy of the agreement and to stop the spread of rumors. We believe the lack of transparency is unhelpful and do not believe that it is in the public interest.”

The chief complaint which was brought forth by most of the artists in attendance was that companies are more likely to sue them for copyright infringement than to work with them.

One exception to that rule was Dan Walsh, creator of the massively popular website http://garfieldminusgarfield.net. He was paid by copyright holder Paws, Inc., to edit and put together a collection of comics which was then published into a book.

Another organization supporting the Fair Use Day was Microsoft. The software giant, typically seen as an aggressive supporter of its own copyright, has created an end-user license agreement to make modifications to its Xbox game content.

Microsoft said that “so long as you respect these rules, Microsoft grants you a personal, non-exclusive, non-transferable license to use and display Game Content and to create derivative works based upon Game Content, strictly for noncommercial and personal use.” However, the company also said that “We can revoke this limited use license at any time and for any reason.”

The second panel of the day focused on best practices and how teachers, archivists, film makers and students. Many complained about how they were subject to the vagaries of courts’ interpretations of Fair Use.

Under Section 107 of the Copyright Act, which codifies the common law of Fair Use, courts are to consider four factors in determining whether a particular infringing use is excused by Fair Use defense:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work
  5. The event brought together lawyers, policy makers and artists to talk about the various issues regarding the subject.

Videos of each of the panels can be seen here.

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