Digital Media and Fair Use

The overarching goal of copyright protection is to provide an incentive for authors to create works which benefit society both intellectually and culturally, while also allowing for commercial monetization to reward their efforts. If works could be freely shared without compensation, it would diminish the ability of authors to generate an income and deprive society of some of the greatest cultural masterpieces. However, in contemporary culture, where the emergence of the internet has encouraged the sharing and distribution of media, copyright laws have become a draconian measure in our culture. One aspect of copyright legislation, which has the greatest potential to encourage cultural exchange, if reformed, is fair use.

Although modern copyright laws protect a diverse range of mediums from physical media such a CD’s and DVD’s to digital files including MP3’s and JPEG’s, it has its’ roots in the eighteenth-century Statue of Anne enacted in Great Britain. While the Statue of Anne was initially meant to protect against the physical reproduction or copying of works for commercial gain, it extends a number of common law property rights to the author. As explained by Justin Hughes, “behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors” (Hughes). As owners of their respective works, Section 106 of the Copyright Act extends to authors the bundle rights often associated with private property such as the right to reproduce the work or perform the work in public as well as the ability to license the work to others. However, the bundle of rights also evokes another common law tradition, the commons. The notion of the commons, as based on John Locke, encompasses “shared property which is a reflection of joining together to achieve a public good” (Blount). The commons are reflected in the Copyright Act as Section 107, which establishes the fair use of protected works for limited non-commercial purposes such as for education, news, commentary, or research.

While Section 107 may serve a noble intent, it is among the most ambiguous and litigious aspects of intellectual property law. Fair use acknowledges that “not all uses violate the copyright owner’s bundle of rights and can serve as an outlet to promote progress of the arts” which is consistent with the original intent of the copyright clause in the U.S. Constitution (Blount). However, as demonstrated by cases such as Blanch v. Coons (2006), Campbell v. Acuff Rose Media (1985), and Princeton University Press v. Michigan Document (1996), fair use has not prevented author’s from protecting their commercial interests by filing infringement claims in courts. In writing the majority opinion in Princeton University Press v. Michigan Document (1996), sixth circuit judge David Nelson notes that “Fair use is one of the most unsettled areas of the law. The doctrine has been said to be “so flexible as virtually to defy definition” (Princeton University Press). The unsettled aspect of fair use, has made content creators cautious about utilizing works under Section 107 protection. Recounting the story of a documentary film maker who wanted to use a scene where a short clip of the Simpsons was playing, Lessig notes the “studio takes a dim view of “fair use,” and a claim of “fair use” can grind the application process to a halt…even though I never had any doubt that it was “clearly fair use” in an absolute legal sense, it was cut from the scene” (Lessig, 98). It is clear that fair use needs to be reformed to achieve the original aims of Section 107.

Although courts apply a statutory test when determining fair use or infringement, more explicit legislation is necessary allowing for greater non-commercial use of protected works. While Section 107 provides a list of uses such as for education, news, etc., in the age of digital copy and paste, more specific regulations are necessary. Due to intense lobbying by corporate interests, “the technology that preserved the balance of our history—between uses of our culture that were free and uses of our culture that were only upon permission—has been undone” (Lessig, 8). Since the Congress has failed to substantially articulate digital technology in a revised Copyright Act for the new millennium, the courts have been forced to decide the issue. Crafting new legislation which balance’s “the important need to give authors and artists incentives with the equally important need to assure access to creative work” would provide greater protection for fair use” (Lessig, 172). In the absence of explicit legislation and unsettle legal outcomes, non-profit organizations, such as Creative Common’s, sought to fill the void.

The digital millennium and the emergence of the internet, has ushered in a new era of creative expression. Just as the Copyright Act sought to promote arts and culture, fair use can achieve the aims as well. However, the current legislation, which was drafted half a century ago, does not provide robust protections for fair use in the digital era. This void has created an area of the law, which the courts themselves are highly litigious and unsettled. The litigious nature of fair use has prevented many legitimate uses under Section 107 protection due to fear of legal reprisals. Expanding and reforming fair use would further the aims of the copyright clause by advancing the useful arts.