Why we need to put fairness into copyright use

Last Updated: 22 May 2005

The concept of fair use "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster".

-  United States Court of Appeals for the Ninth Circuit.

This is the outline of a talk given by Matt Black
at Snapshot 3, a seminar hosted by the
Arts Management Advisory Group in Melbourne Australia
20 May 2005

Introduction

I'm here today on behalf of Electronic Frontiers Australia (EFA), which is a national, member-based organisation that advocates for civil liberties and privacy in the online context.

EFA's interest in copyright law stems from the growing significance of copyright in the way that people go about their everyday lives, particularly in relation to using newer technologies. EFA essentially represents users of technology and our membership consists of both consumers of copyright and creators of copyright, particularly software developers.

Today I'm going to talk about why I think we need to put more fairness into copyright use. I'm going to outline why I think fairness is relevant and how I think it should fit within copyright law. Then I'm going to bring up a couple of examples which I think show how fairness can play a role in copyright and also show how fair use isn't just about rights for copyright users but is also very important for creators.

Relevance of fairness

So, first the relevance of fairness. Let me start with a quote from the US courts that I think underpins what my message today is. This is a short passage that is frequently cited by the US courts. They've said:

The concept of fair use "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster".¹

That's one of the most important purposes of a fair use approach – to ensure that copyright law fosters rather than stifles creativity.

As I said, I think fairness is a concept that should play a significant role in copyright law. Just as the law attempts to identify and deal with unfair trade practices, I think copyright law should be identifying and dealing with unfair copying or unfair use of copyright material. The flip side of that is that fair uses of copyright material should be allowed, or promoted.

We talk and hear a lot about balance in copyright - about getting balance between competing interests. I think that the concept of fairness is one way to deliver that balance. When copyright is over-protective - when it is too strict and inflexible (or rigid as the US courts put it), it's not only users who are disadvantaged, but also creators. Rigid copyright can stifle creativity and I think that fair use can, to some degree, soften copyright in a way that fosters creativity.

At present, fairness just doesn't play an important part in Australian copyright law. We ban users from doing things that are fair and reasonable. And we ban creators from making use of existing materials in fair and reasonable ways – ways that I think should be open to them.

By way of example, I'll briefly discuss The Panel case. You've probably heard of this case – Channel Nine sued Channel Ten because Channel Ten's The Panel program showed segments taken from Channel Nine broadcasts. Basically, The Panel played short clips from shows that were originally shown on Channel Nine and discussed those clips, or made commentary around those clips. It was things like segments from interviews and news as well as drama shows. There were a whole lot of clips that were in issue, but the use of most of them was found not to attract the fair dealing defence.

What makes me uncomfortable about the case is that it wasn't about fairness. Instead, the fair dealing aspect was was about purpose. The theme of the court's consideration of fair dealing was whether or not the use of this clip was for the purpose of criticism or review – whether or not the use of another clip was for the purpose of reporting the news. And that led to consideration of the blurring of news and entertainment and so on. What the court wasn't focused on was fairness – whether or not the use of the various clips was fair in all the circumstances. And that's mostly because of the purpose-based fair dealing provisions that Australia has. It tends to all be about purpose rather than fairness.

The case shows that in current Australian law, uses of copyright material that don't cause harm, that don't interfere with creativity may be banned. The rigid nature of the law may in fact stifle creativity. The most likely outcome of The Panel case is that people will shy away from using copyright material for fair uses, even within the supposedly permitted areas of criticism, review and news reporting. It's just too risky.

So the relevance of fairness is its ability to make copyright more flexible in its application - to make copyright more likely to achieve its goal of promoting creativity. Fair use can't solve all problems and it isn't perfect, but it can help to ensure that the rigid application of the law doesn't stifle creativity.

Fair use examples

So, let's look at a couple of more specific examples. There's a lot of focus on time-shifting and format-shifting, which are important topics, but as I said I'd like to note a couple of examples that I think might have more of a focus on fair use as it relates to creators and artists.

Parody

My first example is parody and I'll tell you about a Canadian case that isn't about anything particularly creative, but I think demonstrates the issues. A union and an employer were in dispute. The union created a website that parodied the employer's website. The union's website copied the general look of the employer's website, using similar colours, shapes and designs but with obvious changes. So logos were changed, things inverted and that kind of thing. The content of the union's website was, of course, completely different and basically reviewed and criticised the employer's labour practices.

The employer sued the union in part based on copyright infringement². The court decided that there was substantial copying of the employer's website, based on a qualitative impression of look and design. So, there was infringement. The union claimed that what they had done was a fair dealing for the purpose of criticism or review under laws similar to Australia's.

That claim was rejected. The court held that the fair dealing defence failed because the union's website did not criticise the employer's website, which was what had been copied – instead, the union's website was criticising the company's labour practices.

Like The Panel case, what we see is a focus on purpose rather than fairness. Instead of looking at whether there was any unfairness in the copying that took place, the purpose based fair dealing provisions can prevent fair use of copyright material merely because it falls outside strictly defined purposes.

Now the way copyright is used in a case like that I think is really an improper purpose. That's not what copyright should be about. The employer may have had a legitimate issue with the union's website, but there are other laws for that and copyright should be left out of it.

I don't think that restrictive restraints like the purpose based approach are in the interests of creators. With the current state of Australian law you'd have to be quite brave to use copyright material in any sort of work of parody or social commentary. There's a quite famous US case³ that involved a parody of the book "Gone with the Wind". An author wrote a book called "The Wind Done Gone" and copied various elements of Gone with the Wind to tell a story from the perspective of the American slaves in a form of parody and social commentary.

The owners of Gone with the Wind sued for infringement. The US court made this comment: "copyright does not immunize a work from comment and criticism." Now, we could possibly say the same thing of Australian law, but in the US the court could approach it from a different perspective. The judges asked "to what extent [can] a critic ... use the protected elements of an original work of authorship to communicate ... criticism without infringing the copyright in that work." This was all about fairness; it was "essentially an analysis of the fair use factors." In that case, the court determined that the parody was a fair use. There was no strict purpose requirement, instead it was a question of whether the use was fair in the circumstances.

With the current law in Australia, it's not entirely clear how parody might be treated – it would depend upon the specifics of the case. But creators and artists can't have any confidence that they are able to use some element of existing copyright work as part of a parody or broader social commentary. Even if what they're doing is in no way unfair, even if it's arguable within a permitted purpose they are not ensured protection.

And of course re-using various copyright material can extend beyond parody. Without going into detail, I'd note concerns that have been expressed about producers having copyright material appear in their movies, sometimes even inadvertently. And also software developers trying to make programs that are interoperable with other programs – I think that we need to inject fairness into how these types of issues are dealt with.

Thumbnailing

My next example is what they call thumbnailing and I'll start with an anecdote so show you what I mean. A friend of mine used to do graphic design work at the Queensland Art Gallery. The Gallery would regularly produce pamphlets or brochures promoting artwork that was on display and they liked to provide small pictures of some of the artwork as part of that material. To do so they had to copy the artists' work, which meant they needed permission. But permission was difficult and often impossible to get in the context in which they were working. This meant that many artists' could not be promoted in catalogues or brochures. Again, I think that's an area where the idea of fairness should apply – the strictness of copyright needs more flexibility.

That type of is relevant on the internet, too. If you look at a search engine like Google, they have an image search page where you can search for pictures on the internet. When you type in your query the search engine returns a page of full of small thumbnail pictures that represent full-size pictures that it has found out there on the internet. Then, when you click on one of those small images, it loads the original site where the picture was found in one frame and shows the URL of the original website and image in a smaller frame⁴.

So for example, I'm from Brisbane and this week I typed Melbourne into the search and clicked on one of the small images of Melbourne city. That took me to the website of professional photographer selling various photos, including some of Melbourne.

Under the open-ended fair use approach in the US, this type of thumbnailing is looked at from the perspective of "is it fair?", but in Australia it would be looked at from the perspective of "is it within one of the defined purposes?".

To finish up, I think that fairness can facilitate bringing together consumers and artists. And by having a broad, flexible concept of fairness, the law can better accommodate developments in technology and developments in how consumers and creators relate and interact.

In summary, my message is that one of the most important purposes of a fair use concept is to ensure that a rigid application of copyright does not stifle creativity. In other words, fair use can promote and facilitate creativity – and in that way I think it is relevant and important for artists and creators.

Footnotes