Dr. Matthew Rimmer Takes A Closer Look At Fair Use

For this week's Favorites of the Week, Dr. Matthew Rimmer wanted to focus in on some of the specific points that came up in the Congressional hearing on fair use earlier this week. While a bit different than our usual "favorites of the week" post, it's a really fantastic in-depth look at some of the issues, which I'm sure many of you will enjoy. It is twenty years since the Supreme Court of the United States handed down its landmark decision on copyright law and the defence of fair use in the "Pretty Woman" case, Campbell v. Acuff Rose Music. Inspired by the jurisprudence of Justice Story and Justice Leval, Justice Souter developed a doctrine of transformative use. His Honour stressed that "the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Justice Souter observed: "Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." In January 2014, the United States Congress held a hearing about copyright law and the scope of the defense of fair use. The House of Representatives Judiciary Committee - through its Subcommittee on the Courts, Intellectual Property, and the Internet - heard a number of pieces of evidence and testimony. Mike Masnick provided an astute summary of the issues raised in the hearing on Techdirt. Brandon Butler said that the hearing put "transformativeness on trial." Professor Peter Jaszi is a leading public scholar and intellectual on matters of copyright law. He was instrumental in co-editing landmark collections of copyright law and authorship, such as The Construction of Authorship. Jaszi was quick to argue against the introduction of a copyright term extension in the United States. He has written extensively about the operation of the copyright defense of fair use – writing works such as Reclaiming Fair Use with Patricia Aufderheide. In his written evidence, Jaszi emphasized four themes to the United States Congress about the defense of fair use. First, he observed that a "citizen's ability to make some socially and economically positive uses of copyrighted material without permission is a right, and now widely recognized as such – including acknowledgements by both the Congress and the Supreme Court, which has stressed the connection between fair use and the freedom of expression secured by the First Amendment." Second, Jaszi commented that "fair use is working." He emphasized: "Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not." He commented: "What's notable about the current situation is that more and more business and practice communities are actively acknowledging the ways in which their contributions to our collective cultural and economic life depend on the ability to exercise the right of fair use in appropriate circumstances." Jaszi has been a part of a recent study considering how artistic communities grapple with questions of copyright law, permissions, and fair use. Third, Jaszi stressed that the defense of fair use is patterned, reliable, and predictable. He scoffed at the complaints of critics that the defense was vague, uncertain, and unpredictable: "The current state of the law is proving those critics wrong." Finally, Jaszi maintained that there was no pressing need to revise or reform the defense of fair use in the United States. He observed that "the last decade has seen a proliferation of decisions applying this flexible, purpose-based doctrine to uses in the digital domain, from the development of interoperable software products and Internet search technology, to the practice of remix culture, though mass digitization in the promotion of access to knowledge." Jaszi stressed: "In effect, in only a few short decades, the courts have developed a robust 'unified field theory' of fair use which is fully capable of meeting the digital challenge and should be allowed to do so." In conclusion, Jaszi held that "the fair use doctrine adds materially to our cultural choices, our