fair use: incentives, innovation, users

Preceding pages highlighted the innate tension in intellectual property between the rights of users and the rights of IP owners. The web - and more broadly digital technologies - have fired up debate about the shape of those rights and their rationale.

This page covers -

• fair use
• innovation and incentives
• what's fair?
• home copying

     Fair Use

There's a sizeable literature about fair use (aka fair dealing) in the US, UK and Australia. We'll be adding pointers shortly.

In the interim:

Stanford University's Copyright & Fair Use site offers an introduction to the US debate.

the Australian Copyright Law Review Committee's 1997 report on simplification of the Copyright Act offers an introduction to fair dealing provisions in the current Australian legislation, described earlier in this guide

the Australian Copyright Council (ACC) has produced a characteristically lucid book on Fair Dealing in the Digital Age.

Peter Brudenall's 1997 paper The Future of Fair Dealing In Australian Copyright Law predates the 'Digital Agenda' reforms but offers an introduction to many of the issues.

In Australia fair dealing is confined to four purposes

• research or study - sections 40 and 103C
• criticism or review - sections 41 and 103A
• reporting of news - sections 42 and 103B
• professional advice given by a legal practitioner or patent attorney - section 43(2)

As the Australian Digital Alliance's Nick Smith noted in April 2002, in Australia 'fair use' has

come to stand in as a general expression for the user-side of the copyright fence.

He commented that fair dealing provisions in the Australian legislation are "geared towards the print world" because they largely require the user to be in possession of a copy. If you have a physical copy (eg a book) or are viewing an 'accessible' digital copy (eg an unencrypted document on your browser), "you may copy as the law allows". If you cannot access a copy, the law is silent.

Despite suggestions that publishers should be obligated to make material available under a general 'copyduty' or a digital version of statutory deposit legislation

There is no positive obligation on an author/publisher to make previously published material available in a way that may be copied or even at all. The law only says that this publisher/author can't sucessfully sue you on the basis of certain types of copies that you make

As of 2004 publishers are thus able to 'stream' text in such a way that users can read but not legitimately copy. The legislation does not recognise fair dealing/use as a 'permitted purpose' for supply/manufacture of circumvention devices.

One permitted purpose is library copying but the provisions require that the work in question be in the 'library's collection'.

     Innovation and incentives

The first page of this guide highlighted the emergence of different rationales for intellectual property protection, including incentives for creativity and distribution.

Birgitte Andersen & Jeremy Howells - in Knowledge and Innovation in the New Service Economy (Cheltenham: Edward Elgar 2000) edited by Andersen, Howells, Richard Miles & Joanne Roberts - drew together a range of arguments for intellectual property rights (IPRs), suggesting that they include:

At the end of September 2000 the Canadian Competition Bureau released guidelines on how the Bureau will deal with competition issues involving intellectual property. Canadian Intellectual Property: The Politics of Innovating Institutions & Interests (Toronto: Uni of Toronto Press 2900) is an incisive study by Bruce Doern & Markus Sharaput, of particular value in considering principles and practice in Australia and overseas.

US perspectives are provided by The "New Economy" and Information Technology Policy, a 2001 paper by (PDF) by Pamela Samuelson & Hal Varian, in Carl Shapiro's thoughtful Antitrust Limits to Patent Settlements paper (PDF) and in Is Innovation King at the Antitrust Agencies?: The Intellectual Property Guidelines Five Years Later (PDF) by Richard Gilbert & Willard Tom. A UK perspective, centred on the needs of SMEs, is provided by the 1996-1999 Intellectual Property Initiative project.

John Howkins' The Creative Economy (London: Allen Lane 2001) gives a panoramic view of the "copyright-industrial complex". Sources of Industrial Leadership: Studies of Seven Industries (Cambridge: Cambridge Uni Press 1999) edited by David Mowery & Richard Nelson and Trade Warriors: States, Firms & Strategic-Trade Policy in High Technology Competition (Cambridge: Cambridge Uni Press 1999) are also of value.

In December 2000 Australia's Intellectual Property & Competition Review Committee released its final report, endorses Australia's intellectual property regime, in particular copyright law. 

In contrast to past criticisms it argues that IP is not innately anti-competitive or automatically gives owners market power, with competition watchdog Alan Fels commenting that 

it is now accepted that intellectual property laws do not clash with competition laws because they do not create legal or economic monopolies. Intellectual property laws create property rights and the goods and services produced using intellectual property compete in the marketplace with other goods and services. Only in particular cases will intellectual property owners be in a position to exert substantial market power or engage in anti-competitive conduct.

Gordon Gow's 1995 paper on Copyright Reform in Canada: Domestic Cultural Policy Objectives & the Challenge of Technological Convergence remains a model for thinking about national impacts.

David Johnson's paper Rewarding Authorship in Cyberspace: Is Intellectual Property the Answer or the Problem?, William Baumol's persuasive The Free-Market Innovation Machine (Princeton: Princeton Uni Press 2000) and Clayton Christensen's The Innovator's Dilemma: When New Technologies Cause Great Firms to Fail (Boston: Harvard Business School Press 1997) offer another perspective. 

     what's fair?

Lawrence Lessig's The Future of Ideas: The Fate of the Commons in a Connected World (New York: Random 2001) questions whether intellectual property law will severely inhibit innovation, a theme of essays in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society (Oxford: Oxford Uni Press 2001) edited by Rochelle Dreyfuss & Diane Zimmerman and Ruling the Waves (New York: Harcourt 2001) by Debora Spar.

James Boyle's challenging Shamans, Software & Spleen was noted earlier in this guide. His 1997 paper A Politics of Intellectual Property: Environmentalism for the Net is characteristically thoughtful. Eric Schlachter countered with a paper on The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could Be Unimportant on the Internet.

Anne Fujita's 1996 paper The Great Internet Panic: How Digitization is Deforming Copyright Law is overstated but may encourage thought. More cogently, Jessica Litman's 1994 paper The Exclusive Right To Read was an impassioned plea during the lead-up to the US Digital Millennium Act.

Her 1996 paper on Innovation and the Information Environment: Revising Copyright Law for the Information Age also explores conceptual challenges, as does the 1997 paper on Copyright Noncompliance (or why we can't "just say yes" to licensing).

For other perspectives on US developments we recommend Leon Seltzer's Exemptions & Fair Use in Copyright: The Exclusive Rights Tensions in the 1976 Copyright Act (Cambridge: Harvard Uni Press 1978), Growing Pains: Adapting Copyright for Libraries, Education & Society (New York: Rothman 1997) edited by Laura Gasaway and Kenneth Crews' Copyright, Fair Use & the Challenge for Universities (Chicago: Uni of Chicago Press 1993). Tensions within the academy about IP are discussed later in this guide.

William Patry's The Fair Use Privilege in Copyright Laws (Toronto: BNA 1995) compares US thinking with practice and statutes in other jurisdictions. It is complemented by Susan Scafidi's Who Owns Culture?: Appropriation And Authenticity In American Law (New Brunswick: Rutgers Uni Press 2005). Molly Torsen's 2004 Fine Art Online: Digital Imagery & Current International Interpretations of Ethical Considerations in Copyright Law (PDF) offers a useful point of entry into literature about fair use of images in the digital environment, where rules of thumb such as 'copy up to 10% of a text under fair use' are ineffective.

The Law and Economics of Reverse Engineering, a 2001 paper (PDF) by Pamela Samuelson & Suzanne Scotchmer, highlights concerns about fair use and reverse engineering of software.

Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York Uni Press 2001) by Siva Vaidhyanathan is funky, impassioned but to our minds unconvincing. It is complemented by David Bollier's Brand Name Bullies: The Quest to Own & Control Culture (New York: Wiley 2004), The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives (New York: Basic Books 2008) by Michael Heller, Matt Mason's The Pirate's Dilemma (London: Allen Lane 2008) and the zany Freedom of Expression®: Overzealous Copyright Bozos & Other Enemies of Creativity (New York: Doubleday 2005) by Kembrew McLeod.

     home copying

The Australian Copyright Act does not provide a general exception to copyright infringement for copying for private and domestic use.

Copying of copyright materials onto video/audio tapes and computer media such as a personal computer hard drive or iPod without authorisation by the copyright owner is permitted under the Copyright Act in specific circumstances, notably

• recording of broadcasts by educational institutions and those assisting persons with a visual or intellectual disability under a statutory licence
• recording of live broadcasts - as distinct from broadcasts of films or documentaries - for 'private and domestic use' (section 111(1) and 111(2).

Creating back-up copies or 'car-use' copies of audio/video material is not an exception provided for in the Act as of January 2006.





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