DPP Home Business Is Fair Use Really Fair?

Tuesday, November 10, 2009

Is Fair Use Really Fair?

As it exists today, “fair use” is a confusing and complex problem for photographers

Another troubling aspect of the comparison is that it fails to take into account changes to copyright law since the U.S. Supreme Court’s decision in Sony Corporation of America. In 1997, Congress passed the No Electronic Theft (NET) Act, which broadened the scope of what constitutes criminal copyright infringement. One of the key changes was to extend criminal penalties to instances of infringement, even when no money is charged.

Fortunately, it doesn’t appear that everyone at The New York Times shares Falzone’s views regarding fair use. Shortly after Zjawinski’s controversial suggestion was published, Times Assis-tant Managing Editor Michele McNally published an answer to the question of whether she endorsed Zjawinski’s view “that it is perfectly acceptable to steal copyrighted images from the Internet” and whether it’s a “good idea for The New York Times to seemingly endorse such views by publishing them.” In response, McNally wrote, “I have received a number of queries about Ms. Zjawinski’s recent post on Gadgetwise, a New York Times blog about personal technology, in which she discussed downloading and printing Flickr images for use as home décor. Here is where The Times stands on the issues that have been raised about the post: We are strong proponents of copyright protection. The New York Times does not endorse, nor is it our policy to engage in, the infringement of copyrighted work. We apologize for any suggestion to the contrary.”

As an interesting postscript, on June 29, Zjawinski revised her article “[t]o address questions raised by the original,” and to clarify that, “in keeping with the policy of The New York Times,” photographs are “used only if permission is granted by the rights holder.” Despite these revisions, Zjawinski maintained the original language “[a]nd if you’re wondering about copyright issues….” However, at the risk of stating the obvious, there would be no need to wonder about such issues if the owners of the photographs had granted permission.

Extending Terms And Increasing Fair Use Tensions
One of the tensions at play in the fair use debate is the fundamental reason why copyright exists, namely to provide an incentive for people to create.

When responding to some of Lessig’s arguments regarding fair use at “The Comedies of Fair U$e” seminar, Allan Adler, the vice president for Legal & Government Affairs for the Association of American Publishers, highlighted this tension when illustrating the misguided view that many people have regarding fair use. For example, according to Adler, many people have the mistaken belief that “any educational use of a copyrighted work is fair use. Well, if that’s the case, how are we supposed to have an industry in this country, as indeed, the public and our government want us to have, for people who will constantly be investing in ways to improve education, in part, through the constant improvement and creation of new and better education content with which our teachers can instruct students in school. If it’s all free simply because it’s being used for educational purposes, how is somebody supposed to invest in what it takes to create a textbook?”

However, as the term of copyright protection has been extended, the debate also has turned on whether copyright law, in its current form, still exists to advance the arts and sciences, or whether it now exists for the sake of entrepreneurialism. Unsurprisingly, many who believe that fair use as it currently exists stifles creativity also believe that the term of copyright protection has been extended to the point where copyright law no longer serves its intended purpose.

In the United States, the authority for copyright laws was included in the same document that created the entire American system of democratic government: the U.S. Constitution. Article I, Section 8 of the Constitution—which establishes the powers of the legislative branch of government—includes the power to“promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”


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