ON THE ABOLITION OF 'FAIR USE'
December 2004
Something momentous happened to
the arts and sciences in this country in September of last year. We
didn't read about it in the newspapers, and there was no discussion in
parliament before the change occurred. I found out about three weeks
ago in the pages of a computer magazine, which is where I usually learn
about my civil liberties - and restrictions thereto - these days.
What happened in September 2003 was the introduction of Statutory
Instrument No. 2498, otherwise known as the Copyright and Related
Rights Regulations 2003. In addition to changing British law so as to
apply the most restrictive construction of copyright law to the
Internet, Statutory Instrument No. 2498 abolished the concept of "fair
use" for any and all commercial purposes.
You may not spend a lot of time pondering the concept of fair use, but
it has (or has had) an enormous effect on the media environment we
inhabit -- the way we receive information, the kind of information we
receive, and the way we're educated. Fair use allows, or allowed, a
text book writer to include a few lines from a Guardian review of
another book, or of a film or play. It allowed Michael Moore to include
footage of the World Trade Center burning in BOWLING FOR COLOMBINE, and
footage of president Bush's goat episode in FAHRENHEIT 911.
The Guardian owns the copyright of the review (or else the review's
author does). The TV production company or network owns the news
footage. But the public interest - the free and wide dissemination of
important information, in this case news information - was served by
the concept of "fair use."
Fair use is still permitted in this country for news reporting
purposes. But even in this case the Statutory Instrument limits fair
use to material that "has been made available to the public."
"Unauthorised" release of a work to the public now means that no fair
use applies. It doesn't take a fine legal brain to see the can of worms
this opens: what if a newspaper, or Panorama, reveals secret documents
showing General Dynamics' plans for the Star Wars missile system, to be
deployed in the UK?
It's in the public interest for us to know, of course, but the
information is also General Dynamics' intellectual property, fully
protected under this enhanced copyright law. If the corporation, or
indeed the Pentagon, want their secrets kept secret, there's nothing to
stop them suing the paper, or the BBC, for "theft" or "piracy" of their
intellectual property.
"Piracy" is, of course, the rationale behind this huge change to
British copyright law. The Patent Office makes its hatred of "pirates"
very plain, and claims that scurvy privateers deserve no protection
under the confusing old definition of free use: "issues of equity or
fairness do not arise when considering copyright piracy or other
infringement of rights."
But this is debatable, as well. In the last ten years, certain
companies - mainly the Hollywood studios and the big software and music
corporations - have lobbied national governments and international
trade bodies to extend periods of copyright, and to extend copyright
and patent law into areas where previously they did not exist.
There needs to be a rational discussion as to whether this war against
"piracy" is any more right-headed or likely to succeed than the war on
"terror." Wars against nouns suggest confusion on the part of the
agressor, and continuous, forceful action against an unidentified,
permanent threat. New media are by definition new. No one can say what
art forms will come out of them, nor what new income streams will be
created. For Hollywood and Bertelsmann to lay claim to this new
cultural territory on their own terms isn't necessarily the best way to
maximise profit, or make good art, or benefit the community. Another
world is possible, as Lawrence Lessig demonstrates in his book FREE
CULTURE -- which deals with the enormous benefits of a permissive
creative culture, as opposed to a restrictive one.
Even the Patent Office suspects something is wrong, and that the new,
improved copyright law goes to far: after the obligatory blather about
showing no mercy to pirates, their site admits there are serious civil
liberties implications in the new law, and suggests that legislation
may be necessary to redress the balance.
The new law has certainly aggravated people in the sciences. The Royal
Society published a paper entitled KEEPING SCIENCE OPEN: THE EFFECTS OF
INTELLECTUAL PROPERTY ON THE CONDUCT OF SCIENCE, which says that less
copyright restriction, rather than more, is essential for science to
flourish in Britain.
The Royal Society paper points out that the limitation of fair use to
"non-commercial" purposes gives rise to uncertainty, is not useful, and
is complex to operate. Who benefits from it except for IP lawyers and
those corporations large and rich enough to sue?
Justly concerned, the Royal Society considers the abolition of fair use
a disaster. Their position is understandable - they're scientists - but
a bit too narrow. I think scientists and artists need to get together
here, and bang heads jointly, since the abolition of fair use is a
disaster for the development of the arts as well.
Let me give three examples:
1. A student writes a degree paper, which includes (as all research
must) a variety of quotations from other authors on her subject. This
is permitted under the new restrictions, since it is academic research
for a "non-commercial purpose." She gets a first class grade for her
paper, which she now wishes to publish. If she receives a fee for
publication, or if the publication is sold, she must A) contact all the
copyright holders she has quoted, and arrange payment with them, B)
rewrite the paper, removing all other authors' quotes, and crippling
her article.
Everybody knows - or should know - that authors don't make money out of
academic publishing. The small fees and small print-runs won't permit
large trawls for copyright holders or large payouts.
So academic writing, and semi-academic books about film and the arts,
are going to change.
2. A filmmaker - working on a dramatic feature or a documentary - uses
temporary music as soundtrack and background music, in order to get an
idea of what kind of music works with the film. Temporary music is also
needed when a film is screened for the studio or the investors -
especially when money is tight and the composer hasn't yet been hired.
There's an aesthetic danger in this, and every film composer will tell
you of a director who fell in love with the temporary music;
nevertheless it's been the industry norm to use bits of other film
soundtracks, on a temporary trial-and-error basis, while working
towards their finished film.
Standard industry practice has now become illegal. The Liverpool lads
who sent me a DVD of their unfinished, low-budget feature a couple of
weeks ago have broken the law. They're engaged in a commercial
enterprise (all features are commercial, by definition - no matter how
low-budget, how wing-and-a-prayer) and they've taken music from
existing features (some of them directed by me!) and used it as
temporary music for their project.
These young filmmakers are using the copyright soundtracks of Pray For
Rain as part of a commercial activity. Fair use would have been their
excuse, till September 2003. Now they have no excuse, and I shall sue
them.
Well, of course, I won't. I'm flattered that they liked the soundtrack
music from my a couple of my films enough to temporarily re-use it. And
I've put them in touch with Pray For Rain, the composers, so that they
can hire 'em if they get completion funds. Their "fair use" of Pray For
Rain's soundtrack harmed no one, and may generate financial and
creative benefits. The abolition of fair use in this instance benefits
no one, and restricts us all.
3. In the area of music, the consequences for creativity are equally
damaging. For more than twenty years we've grown used to music
sampling, to large or small homages or analogue/digital borrowings.
Consider how Big Audio Dynamite sampled film dialogue on their first
album; in the 80's, Mick Jones and his colleagues were protected by the
right to fair use when they sampled the scratchy voices of Eli Wallach
& co, THE BAD & THE UGLY. The resulting songs harmed no one,
expanded the possibilities of the medium, and contributed to the sales
of old Spaghetti Western video tapes.
Such sampling is now illegal, and United Artists studios can sue the
successors of BAD.
One country which still has
liberal "fair use" law is the United States. Even while the MPAA and
RIAA have written the the copyright law of the Internet, they haven't
been able to restrict fair use, in print or in the digital arena.
William S. Strong, the US's foremost copyright lawyer and author of The
Copyright Book, warned in the Columbia Guide to Digital Publishing
against treating digital media differently from print or tape copies,
because:
"what the fair use doctrine cares about when assessing market impact is
whether the use will supplant the market for the original work, not
whether it will, as an unintended by-product, enable scofflaws to avoid
copyright fees... the argument is dangerous, because, taken to its
logical conclusion, it could seriously undermine the role of fair use
in our culture, and that would have disastrous consequences."
What the top US copyright expert warned against, we have just done -
without publicity, without debate. "No court has yet suggested that any
such revisionism is called for," Strong continues, "and we should hope
none will." No court has suggested such revisionism in Britain, either.
Yet it has stealthily occurred.
According to the Patent Office website, Statutory instrument No. 2498
was made, or decreed, or however these extra-parliamentary dictats come
into being, so as to harmonise British intellectual property law with
that of the EU.
Yes, but - why? Other British laws are not in harmony with EU law - the
right to a fair trial, or the right to join a union, to strike, and to
picket - and the government and Whitehall seem quite happy with the
disparity.
Why, specifically, was copyright law "harmonised" when other laws are
not? What media corporations lobbied for the extension of copyright
law, and the abolition of first use, in Europe?
As a result of this change in the law, American creators, scientists,
and academics currently enjoy a right that Europeans don't. But that
may change. The same media corporations which lobbied for a more
restrictive law in Europe can now appeal to the World Trade
Organisation. If the restrictive EU law isn't overturned, the studios
and record companies can demand - via the WTO's Agreement on
Trade-Related Aspects of intellectual Property Rights (TRIPS) - that US
law be "harmonized" with it.
At that point, shedding a crocodile tear, Pres. Bush will have no
choice but to insist that US copyright law match the EU rules. American
academia, scientists, and documentary filmmakers will be in the same
boat as the Europeans are now. Goodbye fair use, goodbye Michael Moore,
hello new editions of The Copyright Book and The Columbia Guide to
Digital Publishing, explaining what rights American authors, scientists
and artists don't have any more.
The assault on the "fair use" doctrine - our right, up until last
September - has worldwide implications. If we don't fight for it here,
in the next year, "fair use" could easily be lost to creators, artists,
and scientists worldwide, and gifted, by compliant governments, to the
multinational corporate beneficiaries of the WTO.
The Royal Society recommends that Statutory Instrument No. 2498 and the
abolition of "fair use" be renegotiated when the Copyright Directive
2001 is reviewed in 2005. A consultation on changes to the EC Directive
is currently under way. The government will certainly hear from British
scientists, but they should also hear from the creative communities,
including film, music and television, and from all branches of academia.
Anyone interested in having his or her voice heard should contact:
Industry Minister (Hewitt), Science Minister (Sainsbury) & Culture
Minister (Jowell), as well as the CEO of the Patent Office (which helps
formulate IP policy).
Mention Statutory Instrument No. 2498 and tell 'em what you think of
it. Communicate your thoughts about "fair use." And let 'em know if
you'd like to see a less-restrictive, more-permissive, fairer Copyright
Directive in 2005.
You're welcome to send 'em a copy of this article, though a reference
to the Royal Society paper on the effects of IP policy on science would
probably be more impressive/effective.
Save Fair Use! You'll be glad you did.
Alex Cox
alexcox.com
You can find the Royal Society's report at here --
click "Intellectual Property"
Statutory Instrument 2003 No. 2498 can be read here
The UK Patent Office's page about the EC Copyright Directive is here
The British Library also has information on the changes here
And for more about alternative licenses, and alternative possibilities,
please see lessig.org
and free-culture.cc