Fair Use Day and Free Speech
Fair Use Day and Free Speech
Fair Use Day and Free Speech

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    As Ben has noted, today is Fair Use Day. And as it comes a mere week after Independence Day, it's got me thinking about how fortunate we are to have a doctrine like fair use well entrenched in national law.

    Fair use can be classified as one of the “exceptions and limitations” to the rights granted to copyright owners. Other examples of exceptions and limitations include the first sale doctrine, or compulsory licenses.

    At the international level, when you hear people talk about exceptions and limitations to copyright, you tend to hear examples of how they let libraries and schools spread information to others without risking lawsuits. Exceptions and limitations are also often touted as consumer protection laws, allowing users to make backup copies, or ensuring that they can get fair value out of the materials they buy. You also hear about exceptions and limitations as safeguards that allow the blind to convert books into audible formats.

    And all of that is true. But to my often-US-centric ears, one major rationale for exceptions and limitations is missing from that list–free speech. It's one of the most celebrated freedoms in the Constitution, and it's a bedrock of fair use. Look at the examples of fair uses that the statute gives:

    [T]he fair use of a copyrighted work…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use). scholarship, or research, is not an infringement of copyright.

    The first examples of fair use in the statute illustrate one of its most important purposes: ensuring that copyright can't be used to stifle dissenting opinion. If a political candidate claims copyright in the text of his speech, that shouldn't grant him the right to keep me from quoting him in a critical op-ed or pointing up his folly in a YouTube video. I shouldn't have to pay a songwriter in order to mock her song with a parody.

    Too often, we hear about big media companies throwing their weight into exporting some of the worst parts of US copyright law (ever-longer terms, DMCA-like anticircumvention laws that exceed international obligations or any semblance of sanity). If we're really going to try to export aspects of our law, maybe we should start with the best parts–the parts that truly matter anywhere in the world. Fair use, as a pillar of free speech, is a doctrine we can export proudly.