US Chamber Of Commerce Guest Post On Fair Use Fails Copyright Law 101

In another instance of the U.S. Chamber of Commerce’s Global IP Center (GIPC) posting factually incorrect information, on June 11, the GIPC cross-posted a blog post from Plagiarism Today purporting to clarify the meanings of “5 Copyright Terms We Need to Stop Using Incorrectly.”

I ran across this post because of the following GIPC tweet (screenshot posted here in case it mysteriously disappears):

Unfortunately, the linked post gets basic facts about copyright law wrong. On fair use, it reads:

What it Means: A fair use of a work is an infringement of a work where the court has determined that the infringer is not liable due to the nature of the infringement being within the bounds of the law.

I’m honestly not sure how much more wrong one can get. 17 U.S.C. § 107 plainly states:

the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

To say a fair use is an infringement is to fundamentally misunderstand the nature of U.S. copyright law. It’s also nonsensical. By definition, an “infringement” means going beyond what is permitted by law. An “infringement being within the bounds of the law” is no infringement at all.

The author’s confusion probably stems from the fact that in lawsuits, fair use is raised as an “affirmative defense.” Many people wrongly interpret this to mean that fair use is a kind of acceptable copyright infringement. This is incorrect. Wikipedia explains it nicely:

“Affirmative defense” is simply a term of art from litigation reflecting the timing in which the defense is raised. It does not distinguish between “rights” and “defenses”, and so it does not characterize the substance of the defendant’s actions as “not a right but a defense”.

In other words, an affirmative defense is an admission that you committed the alleged acts, but that other circumstances make these acts lawful.

GIPC blog contributors might want to take an introductory copyright law class before trying to educate others on the meaning of fair use.