The Decline of Fair Use

As a writer, I am keenly interested in protecting my ownership rights for my work. It is no small irony that pretty much everything I’ve written in the past several years is freely available on various websites, easily copied by anyone who chooses to do so. And, yes, I have been plagiarized (rather crudely, if you want my opinion). I thank fair use every day for my personal success. Fair use extends the discussion beyond my limited corner of the universe.

Copyright is a Constitutionally-protected right(Article I, Section 8, Clause 8). This means, of course, that the government is entrusted with the responsibility to balance the rights of the content owner with the rights of the public. The fact that copyrights are to be protected for a “limited time” indicates that this balance was considered long before Mickey Mouse edged up to entering the public domain. I still shake my head at the idea that the company that made so much money off the public domain refuses to give back to that community.

But I digress. I am not sure that most Americans understand copyright. They don’t understand the historical reasons for the inclusion of the so-called “copyright clause” in the Constitution. They don’t understand why this protection was deemed to be of limited duration. Most importantly, they don’t understand why and how restrictions on the use of copyrighted material are applied. If you were to listen to the public debate — a debate that is by-and-large one-sided and industry driven — you will come away confused, but generally thinking that the notion of “fair use” has no place in our world.

Once upon a time, copyrights belonged to individuals — artists, authors — who needed this protection to earn a fair wage. These days, copyrights are owned by mega-corporations who need this protection to increase profits. While most of these corporations have done a lousy job of using their copyright rights for good (how much content is locked away in corporate vaults because these same corporations have no notion of how to distribute what they own?), they have been incredibly zealous about ensuring that no “copyright violations” exist.

A recent example of this was a purge of deemed copyrighted material from YouTube. Interestingly, this video content was being used as the basis for academic and critical study — a right protected by the Fair Use Doctrine. In our zeal to purge the Internets of “unauthorized” copyrighted material, we, as a nation, tend to throw logic by the wayside. There is a difference between copyright “violation” and fair use.

YouTube occupies an interesting place in our culture. Primarily, it serves as a destination for humans seeking stupid human tricks, interesting or rare video content, and, increasingly, serialized or structured programming. YouTube also serves as a publishing and distribution platform. It is easy and cost-effective to use the YouTube platform to upload content that will be analyzed and discussed in a venue other than YouTube. In this case, YouTube is a service rather than a destination.

Purging content from YouTube without thought shows that interest in protecting copyright is seen as triumphant over fair use — fair use being one of those rights that falls under the First Amendment of the Constitution. The freedoms enumerated in that Amendment are among our most cherished and hard-won. We must remember that copyright protection needs to be balanced against public rights.

I find it egregious that copyright owners do not consider the public — very often their customers — when engaging in copyright witch hunts. The owners believe they are losing money or eyeballs or something as they exercise their ownership rights. What they do not realize is that the existence of this content on YouTube signals abject failure on the part of these corporations to serve the public. They also do not realize the inherent value of critical analysis and discussion when it comes to that content.

The one common thread we have seen over the past years when it comes to public discussion of copyright is that copyright owners rely upon litigation rather than discussion. It is better to sue than to engage in debate, and this lack of debate is rapidly choking off the idea of fair use. Authors wonder if it’s okay to use five words or seven words from a popular song in their works — what is fair use and what constitutes the need to license the song for a novel? How much of a published work can be used before it crosses the line into a copyright violation? Is it a thirty-second clip or shorter that is deemed appropriate for fair use?

And what about all the confusion over “legal” public video — content that is posted by the corporations themselves — and “illegal” public video. Who makes that call? Is there a process, an arbiter, who can balance the various needs in a fair-to-all-parties manner? Who is teaching the youth of today the realities of copyright, not the realities as decided by corporate owners, but the realities as decided by the Constitution?

Shouldn’t there be more emphasis on education and conversation and less emphasis on litigation? From what I can see, suing everyone in sight does not seem to make the situation better…unless you are a litigation attorney or industry organization placing a premium on the fees you charge your members for the right to sue and sue again.

After all, even the major corporations themselves seem to be more than a little confused about copyright, fair use, and out-and-out thievery. The final days of 2007 saw the Internets abuzz with a story about FOX appropriating a copyrighted image for use during an NFL broadcast. Remember that old saw about glass houses? We all need a serious lesson in copyright (if you doubt this, read the comments to the original post by the blogger — it’s scary how uninformed Americans are about copyright).

The decline of public benefit from protecting copyright — increasing terms that make public domain a joke, the shrinking windows for fair use — makes me wonder why copyright remains a Constitutionally protected right. I am not being facetious. What benefit does the public at large derive from copyright protection? Why should we bear the burden of protecting this particular property when we do not bear the same burden for other types of commercially-owned property?

Fair use is essential for an informed public. Fair use benefits copyright holders as well. It is in the best interest for copyright owners and the public for the discussion about copyright to move beyond litigation and into education.