[This post was written at a live event.]
Up during lunch we have Anthony Falzone and Peter Jaszi answering question about copyright, fair use, and remixing.
AF: Started the Fair Use Project 3 years ago to clarify/expand the boundaries of Fair Use, primarily through litigation but also through authors. Have represented numerous fair users. Formerly represented Shepard Fairey, but to be clear: he still believes completely in the merits of Shepard's case.
PJ: Lots of work on fair use at the Samuelson. Recently working with Pat with communities to develop codes of best practices for fair use which are having impact within the field. People who use the works are reclaiming the rights they had been given 170 years ago by the courts. Thanks to PK and the practitioners who are exercising the rights the (c) act gives them. Thanks also to generations of lawyers/clients who have done so much to make fair use real: EFF and Fair Use Project, but also individuals and their lawyers. Specifically, thanks for showing that fair use applies to commercial works and transformative uses.
PJ: Let's go to questions:
AF: Remember, we can't give you legal advice.
Q from John from Public Knowledge: Do you think the case-law basis for fair use is good, or would it be better to have more defined and clearer law about it?
PJ: I love safe harbors when topic-specific and don't reduce flexibility of section 107. Nice because they are harder to change than social circumstances. The best thing for Congress to do is leave it alone and let us explore the flexibility it provides.
AF: The day-to-day flexibility is a huge strength. It is little changed since 1976, but has been applied to new technologies like search engines. Flexibility is what lets it adapt to new technology and innovation. I agree with Peter — moving towards fair dealing models would be a step back.
Jonathan Band, representing (among others) library associations: What do you think about the Georgia State publishishers vs. electronic reserves?
PJ: Don't know enough details to comment on the case itself, but note that activities Georgia State is engaged in is a straightforward extension of long-accepted and -endorsed practices into the digital domain. The question is what detrimental effect does the digital model add to the traditional reseves model? My greatest fear about the litigation is that it won't be decided by a court, and we won't get clarification of the application of Fair Use to e-reserves. A settlement could become a pattern which publishers use to intimidate other institutions. Lots of complicated facets tot he problem, including fair compensation.
AF: This is something everyone who cares about copyright should care about. What will libraries look like in the next century? Things like first sale which help libraries don't necessarily translate to the digital world. If it translates to a fee model, will something like our current libraries exist? Lots of complicated questions, including fair compensation. But not clear that his kinds will be able to check out books like we do today.
Sarah Bannerman from GWU: Should fair use be internationalized, and if so, how?
AF: Every time we talk about internationalization, we talk about the H-word: harmonization. He's afraid it will be a race-to-the-bottom resulting in minimal protections. Fair use in the hands of WIPO will be unrecognizably watered down. If you believe it protects free expression, worry about internationalization.
PJ: I used to have a strong opinion that it should be resolved by internationalizing fair use — specifically, imposing our version on other countries. I no longer believe this is the proper solution. I'm afraid that in the end it reflects too much American exceptionalism. As he's done more international work, he's come to understand that for good reason, other countries are very attached to how their laws do “fair use.” In South Africa, there's not much entheusiasm for importing a US-based solution, but there's lots of entheusiasm for using their own built-in flexibility like their quotation exception. The principles must find expression under international law, but our particular version won't work. As Jon Band said in last night's discussion about ACTA — although it's true that exporting fair use might not be good (c) policy, there is somethign deeply cynical about a (c) policy which exports limiting principles without exporting flexibilities. All we know suggests ACTA, like other recent agreements,
has nothing about limitations and exceptions. We know from CCIA's studies that we benefit a lot from fair use, and others should also have limitations if they want to benefit.
Question from representative of book scanners: What do you think about Google settling their Google Book Search case, esp. with regard to fair use?
AF: They couldn't get where they are today with fair use, but he's disappointed that the issue has not been resolved. Resolving it today would pave the way for other uses, and no one else has the resources to fight it like Google. We may be left with only the right for one corporation to do this thing.
PJ: Agree it would have been beneficial to fight out, in part because fair use argument was so strong. Don't agree with AF as much about the “backwash.” Up to us whether there will be negative fair use implications from the settlement. Clearly from a legal standpoint, one party settling does not mean anything. It's up to us to make clear that this is an outcome which tells us nothing, formally or otherwise, about fair use. Will anyone else be in a position to litigate a fair use defense as well as Google could have? Hard to tell. But there will increasingly be others engaged in mass digitization for cultural positives, and I believe that will be tested and fair use will succeed.
AF: Worry that we'll never really know who was dissuaded from trying things (fair uses) by the the settlement. Hard to change or undo.
Question from “It's Ron again”: Struck by something AF said about old musty books on library shelves. EPA has announced that for the time being they won't be enforcing the law about reselling certain goods with regard to books older than 1984 which have high lead content, but there are still chilling effects: Schools and others are still trashing these books because of fear of danger to kids or liability.
PJ: What can I say, that's one of the worst things I've heard today. Interesting issue. It's not clear that a law regarding resale of books for health reasons wouldn't conflict with copyright law.
Gigi Sohn: What is going to be the future of the J.K. Rowling case? Publishing online version of Harry Potter encyclopedia. You defended him. Seems like classic fair use. What happens next?
PF: RDR books (our client) used the decision to rewrite the book. Used decision as a roadmap to what they could do. Overall thinks the decision is wrong and would have liked to appeal, but some good things: It established that the right to create reference works is not a right the copyright owner owns — just how much actual expression is taken.
PJ: Agree. I would urge anyone who thinks of it as a loss to read the opinion. While it was clearly a temporary a setback for AF's clients, it was in many ways a victory for fair use. Help solidify 2nd Circuit fair use doctrine which asks two questions: 1) Strongly transformative use? 2) Appropriate use in terms of amount in relation to transformative purpose. Note that licensing revenue loss is gone from the analysis. Differed from AF's team on factor #2. Maybe he erred on the side of conservatism. But the basic notion that transformative uses like encyclopedias are fair when using the “appropriate” (key word, not minimal) amount is good.
Gigi: Thanks, and we'll move right to the next panel.