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

To understand the significance of this foundation, a brief history lesson is necessary. By the time America’s founding fathers authorized Congress to enact copyright laws, the very concept of copyright laws was fairly well accepted, even if that concept was a relatively new one. The founding fathers, drawing upon their English heritage, had as an example the Statute of Anne—named after the ruling monarch at the time the law was enacted—also referred to as the Copyright Act of 1709. The law, which went into effect on April 10, 1710, is considered by many to be the first real copyright law. More importantly, the Statute of Anne represented a fundamental shift in thinking; previously, the rights to publications were vested in publishers rather than authors.

Although a relatively new concept, the Statute of Anne was fairly well-accepted 80 years later when John Adams wrote the Massachusetts Constitution in 1779 and married the concepts of exclusive rights afforded under the Statute of Anne with the importance of education, sciences and the arts as “being necessary for the preservation of...rights and liberties” in a provision entitled“[t]he Encouragement of Literature, etc.” Adams’ inspiration not only would enjoy unanimous approval in Massachusetts, but it also would have a direct impact upon the U.S. Constitution, and in turn, on the first U.S. copyright law when Congress passed the Copyright Act of 1790.

The term of copyright protection under the first U.S. copyright law was 14 years (renewable for a second 14-year term). In the years since, Congress has extended the term of copyright protection. Including the most recent changes, the current term of copyright protection under U.S. law is 70 years after the author’s death; for works made for hire, the term is the shorter of 95 years from first publication or 120 years from the date of creation. This drastic difference in terms of copyright protection has caused some to question whether current copyright law is still serving the purpose for which it was created.

Addressing this point, Lessig has said that, while he believes “most copyright and patent law does promote progress...there is an important and growing list of exceptions.” As an example, Lessig suggests that “extending the terms of copyrights for works that already exist does nothing to promote progress.”

Still, others have attempted to defend the lengthening of the terms of protection. Some have suggested that Congress was only attempting to keep pace with what it believed necessary to continue to incentivize those creating copyrightable works. It also has been suggested that Congress was merely attempting to harmonize U.S. copyright law with the terms of copyright protection commonly provided in Europe and elsewhere.

The debate over the term of copyright protection, and whether copyright law is consistent with its constitutional purpose, reached something of a zenith in the U.S. Supreme Court case of Eldred v. Ashcroft. Eric Eldred, an Internet publisher, and various other entities, challenged the constitutionality of the Sonny Bono Copyright Term Extension Act, passed in 1998, which extended the term of copyright protection by 20 years. Despite Lessig’s arguments—he served as lead counsel for the challengers—the Supreme Court upheld the constitutionality of the legislation.

In light of the Supreme Court’s decision to uphold the current term of copyright protection, the tension between the current limitations on fair use and the fundamental reasons why copyright law exists—the progress of science and useful arts—will continue for the foreseeable future.


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