Dysfunctional Views on Copyright in the Federal Government
Dysfunctional Views on Copyright in the Federal Government
Dysfunctional Views on Copyright in the Federal Government

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    Copyright law is a complex field, and it's understandable that lots of people might hold some misconceptions about some of its fuzzier aspects, like fair use. It's far less understandable that someone who represents the government's position on IP should old those same misconceptions. Unfortunately, that seemed to be the case when Susan Anthony of the Patent and Trademark Office spoke Tuesday at the University of Maryland's Copyright Utopia Symposium.

    On a panel on international approaches to copyright, Anthony spoke generally and favorably on the doctrine of fair use, holding it out to be one of the best systems in the world for balancing users' rights with creators'. She even speculated whether fair use was “enough.” So far, so good. But it soon became clear that the only reason she asked this question was because she has an unnaturally cramped view of what fair use is.

    Later on in her talk, Anthony mentioned her personal stake in copyright–she's also an independent historian who researches in a rarified field. She told the story of a time that she received a call from another researcher who wanted to use her paper in a presentation at a conference. Anthony became apprehensive, and asked if the other researcher would read from the paper. The researcher said that she could avoid doing so, by paraphrasing. This apparently was still a problem for Anthony, who offered instead to fly up to Chicago to present her paper herself. This of course, wasn't what the researcher had in mind, and later, it seems the presentation went off without any sort of infringement.

    I found this anecdote more than a little troubling, because while Anthony was championing fair use, here, her failure to authorize prevented a fellow scholar from citing published research in a relevant field–something she generally shouldn't have had to ask permission for in the first place. In later question-and-answer sessions, Anthony also mentioned being “nervous” at the idea of someone being able to find her article in a library and photocopy it for private research. The reason she gave for this nervousness was that she felt she had a right to control the uses of that work. She had put, she said, years of collective research into this article, delving into rare and aging books for the information, and now some other researcher was going to appropriate the information she had extracted from that labor.

    There are several dangerous misconceptions built into this line of reasoning. First of all, you can't copyright facts. The ideas expressed in a published work are free for anyone else to use. What they can't do is copy the words you used to express those ideas. Furthermore, the amount of time and effort put in to making something doesn't justify granting the maker an IP right. Intellectual property rights aren't doled out simply for putting effort into compiling facts. You can't for example, copyright the phone book, just because you put in all the effort of aggregating those names. Even byond that, there's specific exemptions for library copying built into the law (see subsection (d)), in the interests of scholarship and research, when the library patron keeps the copy.

    Most importantly, though, the example of library copying Anthony gave would be an ideal example of fair use. In fact, scholarship and research are two explicit examples of fair uses provided for in the statute. The article, we can assume, was a factual one; the copy would be used for scholarly research, not a for-profit enterprise; and this use (kept privately by the researcher) wouldn't have any effect upon the market for the work–it wouldn't supplant the researcher subscribing to the journal.

    Anthony cited the proposition that copying a work in full is presumptively not fair use, and relied upon that proposition in objecting to out hypothetical library copier. This isn't quite accurate either. The amount of copying is but one of the four factors, and while it can be a hint as to how other factors operate (for example, it may suggest less transformative uses, or more market harm), but it cannot by itself determine the outcome of the case.

    Such mischaracterizations are shocking, especially considering that part of Anthony's job is apparently to educate small businesses on the basics of IP. How are we ever going to have a functional copyright policy if those who are charged with educating others can misstate such basic concepts so thoroughly?

    This appears to be a problem in other areas of the government as well. Ars Technica recently published portions of an interview with Marybeth Peters, the Register of Copyrights, who held a very narrow view of fair use. She appeared to be saying, in essence, that a use isn't fair until a court has said so. That's not quite the case. Because fair use decisions are made an a case-by-case basis, a cautious lawyer might tell a client that they can't know for certain whether a use is fair or not, unless it's been decided by a court. But that certainly doesn't mean that we need to hold off on creating new works or new technologies until we either get a say-so from a copyright holder or a federal judge. Adopting Peters' (implied) interpretation of what is legal or not would needlessly chill potentially valuable uses of exiting works.

    Ambiguity is a major concern with fair use law, but it keeps the law flexible, to deal with innovations surrounding copyrighted works. But that flexibility is only available if we aren't intimidated out of exercising our rights, and actually have a good handle on what fair use really is.