It's Copyright Week! From today through Saturday, a number of groups around the Web will be exchanging ideas, information, and actions about how to fix copyright law for the better. Each day will be devoted to a different aspect of copyright law. For more on Copyright Week, see here.
Today's focus is on how copyright law balances the rights of someone who wrote a copyrighted work and someone who bought a copy of it. This post looks at how fair use, while it can be messy, ends up protecting uses that can be hard to predict.
Fair use is many things. Some people think of it as an escape valve–a means for protected uses of copyrighted works that are important for free speech and critical discourse. But that metaphor can minimize its importance, because fair uses of copyright content are not rare, exceptional cases. They happen all the time. When writers quote each other, they depend on fair use. When video clips get shown on newscasts around the world, that's fair use. It would harm free speech and the ability to engage with the culture around us if every snippet of a copyrighted work (which includes every video that someone records and every word that someone writes) had to be licensed and paid for.
But even recognizing the prevalence of this kind of fair use does not show how important it is. The modern digital economy could not function without fair use. Computers are copying machines–any time you move data over a network, you create a new copy. While many of these copies are covered by limitations to copyright besides fair use, without fair use as a backstop, there could be arguments about whether simply operating modern computing technology opens you up to charges of copyright infringement.
Fair use shows off both the good sides and the bad sides of the “common law” approach. In the US, and many other countries with historical ties to Great Britain, law tends to develop on a case by case basis. Of course, we have legislatures that pass statutes, but in common law countries, courts are more likely to apply broad principles to cases before them, or interpret statutes in particular ways, and then follow the same reasoning in the future. That's why the statute that defines fair use doesn't actually specify what uses are fair. Instead, it simply tells judges to weigh various factors:
(1) the purpose and character of the use, including whether such use is of a 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; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
This is rather vague, by itself, but over time a body of case law has developed that offers a lot more guidance, as judges look at the particular facts before them.
By contrast, in “civil law” countries, there's a greater chance that a legislature has written a more detailed statute that tries to cover more situations, and has even offered guidance to a judge on how to interpret a statute. In addition, in civil law countries, courts aren't bound to follow precedent–judges are supposed to just look at the statutes. If the law is clear enough, the reasoning is, different judges will always interpret it the same way, anyway.
The common law system can be more flexible and nuanced than legal systems that do not operate under principles of case-by-case adjudication and precedent. It is easier for a court to come to a just result given the case before it than for a legislature to try to write detailed rules in advance that cover every conceivable situation. The system can also be more predictable–if a particular dispute lines up with precedent, you can more easily determine how a court will rule. But when a case does not line up with a precedent, and absent the more detailed statutes you tend to find in civil law countries, it can be difficult to know whether a given action is lawful or not. This is where we are with fair use. There have been enough fair use decisions that some things are clear. But new technology is developing at a breakneck speed and new uses don't always exactly match older uses in every detail.
Because the way people use copyrighted works has been changing, lawyers can argue and re-argue about whether things like home recording are still fair when done with new technology. That's why astute observers like Lawrence Lessig have said that “fair use in America simply means the right to hire a lawyer.” It is true that litigation takes a long time and is very expensive, which means that guidance from precedent is not always forthcoming. Many cases settle before going to trial, as settlements can be faster and cheaper for both parties involved. (Of course, this is true of a number of areas of the law.)
But I think that's a bit pessimistic. While some people wish that fair use was more civil law-like–with detailed lists of what uses, and what percentages of a work are allowed–there are always going to be situations that don't quite match up with any list of safe harbors. Another downside to this approach is that if you define a “safe harbor” of allowed uses some could argue the only allowed uses are those in the same harbor. Fair use, by contrast, is flexible enough to accomodate unforeseen circumstances. (As I've argued elsewhere, fair use is not the only doctrine that allows for non-infringing uses of copyrighted works, and it would be good if lawyers and judges gave more weight to these other doctrines, such as “de minimis” copying.) “Safe harbor” approaches need to be approached with the understanding that they describe a minimum amount of conduct that is lawful, with the ability to fall back to a more general test like fair use for cases that fall outside the safe harbors.
The Google Books decision is a good illustration of how fair use works. That decision held that it's legal for Google to make internal copies of books for its book search engine (just as it makes copies of websites for its web search engine). However, because book scanning on this scale is so new, there was not much precedent to guide the court. The judge had to rely on analogical reasoning, his good sense, and the fundamental purpose of copyright law when weighing the fair use factors. The downside to this is that the case took years to come to a decision (and it could still be overturned on appeal, however unlikely that may be). Legal reforms that sped up this process would be welcome. But the positives outweigh this. Because the Google Books case will serve as a precedent, other book-scanning projects can follow it. Further, it's unlikely that some kind of “safe harbor” system would have foreseen the usefulness of a large-scale book search engine.
In the end, the case-by-case approach works, in practice, as a set of safe harbors that can help the users of copyrighted works stay within the law. Fair use is perfectly suited to this common law approach, as it's a flexible doctrine that can grow to accommodate new technologies and new kinds of uses. While fair use can seem uncertain at times, it's a process that does create certainty. In addition to the Google Books decision, 2013 brought a number of fair use victories, each of which serves as precedent for the future, providing more certainly, and continuing the development of the doctrine of fair use. Fair use may be messy and confusing, but it works.