[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE SCOPE OF FAIR USE
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COURTS, INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 28, 2014
__________
Serial No. 113-82
__________
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
__________
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Courts, Intellectual Property, and the Internet
HOWARD COBLE, North Carolina, Chairman
TOM MARINO, Pennsylvania, Vice-Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HENRY C. ``HANK'' JOHNSON, Jr.,
LAMAR SMITH, Texas Georgia
STEVE CHABOT, Ohio JUDY CHU, California
DARRELL E. ISSA, California TED DEUTCH, Florida
TED POE, Texas KAREN BASS, California
JASON CHAFFETZ, Utah CEDRIC RICHMOND, Louisiana
BLAKE FARENTHOLD, Texas SUZAN DelBENE, Washington
GEORGE HOLDING, North Carolina HAKEEM JEFFRIES, New York
DOUG COLLINS, Georgia JERROLD NADLER, New York
RON DeSANTIS, Florida ZOE LOFGREN, California
JASON T. SMITH, Missouri SHEILA JACKSON LEE, Texas
[Vacant] [Vacant]
Joe Keeley, Chief Counsel
Stephanie Moore, Minority Counsel
C O N T E N T S
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JANUARY 28, 2014
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Ranking Member, Committee on the
Judiciary, and Member, Subcommittee on Courts, Intellectual
Property, and the Internet..................................... 2
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 3
WITNESSES
Peter Jaszi, Professor, Faculty Director, Glushko-Samuelson
Intellectual Property Clinic, Washington College of Law,
American University
Oral Testimony................................................. 6
Prepared Statement............................................. 8
June M. Besek, Executive Director, Kernochan Center for Law,
Media and the Arts and Lecturer-in-Law, Columbia School of LAw
Oral Testimony................................................. 13
Prepared Statement............................................. 14
Naomi Novik, Author and Co-Founder, Organization for
Transformative Works
Oral Testimony................................................. 22
Prepared Statement............................................. 25
David Lowery, Singer/Songwriter and Lecturer, Terry College of
Business, University of Georgia
Oral Testimony................................................. 32
Prepared Statement............................................. 34
Kurt Wimmer, General Counsel, Newspaper Association of America
Oral Testimony................................................. 40
Prepared Statement............................................. 42
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California, and Member,
Subcommittee on Courts, Intellectual Property, and the Internet 58
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Blake Farenthold, a
Representative in Congress from the State of Texas, and Member,
Subcommittee on Courts, Intellectual Property, and the Internet 70
Prepared Statement of the Association of American Publishers
(AAP).......................................................... 104
Prepared Statement of the American Council on Education (ACE).... 112
Prepared Statement of the American Society of Media Photographers
(ASMP)......................................................... 116
Prepared Statement of the Computer & Communications Industry
Association (CCIA)............................................. 123
Letter from the Copyright Alliance............................... 127
Prepared Statement of the Future of Music Coalition.............. 135
Prepared Statement of the Library Copyright Alliance (LCA)....... 144
Prepared Statement of Marc Maurer, President, The National
Federation of the Blind........................................ 155
Prepared Statement of Sherwin Siy, Vice President, Legal Affairs,
Public Knowledge............................................... 162
THE SCOPE OF FAIR USE
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TUESDAY, JANUARY 28, 2014
House of Representatives
Subcommittee on Courts, Intellectual Property,
and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 1:32 p.m., in
room 2141, Rayburn Office Building, the Honorable Howard Coble
(Chairman of the Subcommittee) presiding.
Present: Representatives Coble, Goodlatte, Conyers, Marino,
Smith of Texas, Holding, Collins, Smith of Missouri, Johnson,
Chu, Deutch, DelBene, Nadler, and Lofgren.
Staff present: (Majority) Joe Keeley, Chief Counsel; Olivia
Lee, Clerk; (Minority) Stephanie Moore, Minority Counsel; Jason
Everett, Counsel.
Mr. Coble. Good afternoon, ladies and gentlemen.
The Subcommittee on Courts, Intellectual Property, and the
Internet will come to order. Without objection, the Chair is
authorized to declare recesses of the Subcommittee at any time.
We welcome all of our witnesses today.
And I will give my opening statement at this point. And I
think Mr. Conyers is en route, I am told.
Fair use was formally incorporated into our copyright law
in 1976 and has been at the heart of a large number of
copyright infringement disputes. Disputes over fair use range
from cases that only pertain to individual uses of copyrighted
works to cases involving high-technology goods, which
oftentimes can affect millions of consumers in congressional
districts throughout the country.
North Carolina, my state, is home to several large
universities that rely upon copyright law to protect their
research and innovation at the same time, and through fair use,
to make other works available for libraries, scholarship, and
other research. Fair use has an important role in our copyright
system. And while it offers tremendous benefits, it has also
raised some concerns, which is why today's hearing is so
important.
Rather than steal thunder from our talented panel of
witnesses, I am going to withhold my comments about the pros
and cons of fair use, until our expert witnesses have had an
opportunity to lay out their arguments of what has worked well
and what deserves additional scrutiny.
As many of you know, the strength of fair use is that it is
somewhat ambiguous, leaving the courts with the discretion to
clarify what is and what is not fair use. This ambiguity is
also, unfortunately, its greatest weakness, particularly in the
digital era because new technologies develop far faster than
disputes are resolved in the courts. We have an important role
and many believe that we can do a better job providing the
courts with guidance on what we intend and what we do not
intend to be fair use, which could help resolve many disputes
dealing with fair use.
It is true that fair use can be very controversial. But, I
want to assure our witnesses and those in the audience today
that all of the extra security you see today on the Capitol
complex is due to the State of the Union Address rather than
the topic of this hearing. [Laughter.]
So, we can all rest easy about that.
So, please feel free to speak candidly and help us
understand how we can improve fair use and protect the rights
of authors and creators.
In closing, we welcome our eminently qualified panel of
witnesses. Thank you for taking time from your busy schedules
to join us today. And we look forward to hearing from you.
I yield back my time and now recognize the distinguished
gentleman from Michigan, the Ranking Member of the full
Committee, Mr. John Conyers.
Mr. Conyers. Thank you, Chairman Coble. It is very kind of
you to bring us all together again for this first hearing.
Today's hearing provides an important opportunity to
examine the scope of the fair use doctrine, as codified in
section 107 of the copyright law, fair use is an affirmative
defense against infringement, under certain criteria as a
starting point. I generally believe that fair use is working as
intended. It provides a limited exception to the creator's
property rights when certain public interests conflict with
those rights.
The current law attempts to strike a delicate balance
between the public interests and a creator's ability to earn a
living from his or her work. Creators should be able to tell
new stories that contribute to public learning by using
permitted copyrighted material as historical artifacts to
depict real-world scenes and events. Historians, biographers,
and filmmakers use these materials in their works to draw
meaning and insights about historical events. The use of this
copyrighted material is essential to discuss historic events,
which is critical to news organizations and public
broadcasters. Additionally, current law, while not perfect,
provides reliable guidance to copyright holders.
Although we must continue to monitor this area, as digital
technology continues to develop and change distribution of
content, we must be vigilant in safeguarding the rights of
creators. In particular, I want the witnesses today to address
whether certain calls for expansion of fair use is due partly
to the fact that specific statutory limitations have not kept
pace with emerging technologies.
And finally, content owners and user groups should continue
to develop best practices to ensure that both of their
interests are reflected. To be clear, I believe that the
interests in maintaining the fair use's historic role as a
flexible doctrine should continue to be applied in a broad
range of contexts. We should also reexamine the application of,
quote, unquote, ``Transformative use standard.'' The
transformative use standard has become all things to all
people. Fair use impacts all types of industry, including
filmmaking, poetry, photography, music, education, and
journalism. We must continue to encourage these industries to
develop best practices.
I too look forward to hearing the witnesses discuss their
opinions about the scope of fair use and what steps, if any,
they believe we in Congress should take to make the law more
effective and efficient.
I thank you, Chairman.
Mr. Coble. I thank the gentleman from Michigan, Mr.
Conyers.
And the Chair is now pleased to recognize the distinguished
gentleman from Virginia, the Chairman of the full Judiciary
Committee, Mr. Goodlatte.
Mr. Goodlatte. Thank you very much, Mr. Chairman.
This afternoon the Subcommittee will hear about a crucial
component of our Nation's copyright law system, fair use. As a
judicial doctrine, fair use has long been part of copyright
infringement cases. As a statutory provision, however, fair use
is a much more recent part of our Nation's copyright law,
codified in section 107 only in 1976. With the exception of the
last sentence of section 107 that added in 1992 to address fair
use issues related to unpublished works, section 107 has
remained unchanged since 1976.
Over the years, fair use has been widely recognized as
providing flexibility in the copyright system, flexibility that
has enabled commercial parody and flexibility that has
encouraged new business models in the tech sector. Fair use has
been at the heart of several important Supreme Court cases,
such as the Pretty Woman and Betamax cases. While there is no
doubt that flexibility in the copyright system is beneficial,
certainty, with regard to our legal provisions, is just as
beneficial, both for copyright owners and copyright users. Not
every dispute over what is and what is not fair use should
require a judicial interpretation.
So, I am interested in learning how the statutory
provisions of section 107 have succeeded since their initial
codification in 1976. Are these provisions too specific or not
specific enough? Are the current four factors the appropriate
factors? And, are they defined correctly? How should fair use
interact with other provisions of copyright law? And, probably
the most important question, how does one define what is
transformative?
As several of our witnesses have noted in their written
testimony, the test of what is transformative has been widely
viewed by Federal judges to be of primary importance. I look
forward to hearing--learning more about this and other fair use
issues this morning.
And I thank the Chairman and yield back.
Mr. Coble. I thank the Chairman.
And the statements of other Members of the Judiciary
Committee, without objection, will be made part of the record.
Ladies and gentlemen, there is a no taxpayer funded
prohibition for funding abortion, and it will be on the floor
later today. The Judiciary Committee has been given a timeslot
and I think some of the Members, John, maybe will want to
participate in that. So, when that timeslot arrives, we will
stand in a brief recess giving--to accommodate those who want
to go on the floor. So, we will try to keep this going as
quickly as we can, without keeping you all here until dark.
[Laughter.]
We traditionally swear in our witnesses----
Mr. Nadler. Mr. Chairman?
Mr. Coble. Yes, sir.
Mr. Nadler. Mr. Chairman, it is, I believe, the invaluable
custom of the House that a Committee or Subcommittee hearing
does not occur while a Committee bill is pending on the floor.
And that means the entire Committee bill, since I am sure many
Members of the Committee will want to be on the floor for
debate on the abortion bill, a rather important bill, and
should not be and would not want to be there only for a small
segment of that debate. And I think that it is improper, under
the precedence of the House, to have the Subcommittee reconvene
prior to or while H.R. 7 is still being debated on the floor.
Mr. Coble. Well, I say to my colleague from New York, I
don't set the schedule of the floor schedule, nor the
Subcommittee schedule for hearings. So, hold me harmless for
that.
Mr. Nadler. Well, I will--Mr. Chairman, I don't--I am not
seeking to place blame at all. I imagine that the intent was to
have H.R. 7 started today, just do the rule and do the bill
tomorrow, and have the Agriculture bill, but the AG bill came
up. But, that is, nonetheless, where we stand now. And it is, I
think, an imposition on the duties of the Members of this
Subcommittee who have to participate in the debate on H.R. 7 to
try to be in two places at once. And I think it wrong and an
adjustment ought to be made in the schedule of the Subcommittee
now, since we cannot control the schedule of the House.
Mr. Goodlatte. Mr. Chairman?
Mr. Coble. Mr. Goodlatte?
Mr. Goodlatte. Thank you, Mr. Chairman.
Well, first of all, the Committee ordinarily tries to avoid
conflicting activities. We did not plan this hearing intending
to have a conflict on the floor. We only learned of exact floor
timing, for H.R. 7, yesterday. Many of our witnesses have come
from out of town. We need to make every effort to complete this
important hearing. And this is a very important hearing, one of
the most important hearings we will hold on copyright law. And
we have the State of the Union Address coming up rapidly later
on. So, we have to take the time to get this done. We certainly
should recess the Subcommittee during the time that the
Judiciary Committee will be managing the bill on the floor.
But, our Committee rules state that the Subcommittee should
plan hearings with a view toward avoiding simultaneous
scheduling of full Committee and Subcommittee meetings or
hearings whenever possible. We scheduled this hearing. We were
not aware of a potential conflict with floor activities.
Nonetheless, the rule does not prevent us from moving forward
today.
And H.R. 7, the bill on the floor, while it is an important
bill and we have paid close attention to it in this Committee,
is not primarily the jurisdiction of the Judiciary Committee.
The Subcommittee will, in my opinion, be best served by moving
ahead expeditiously with our witnesses and our questioning of
the witnesses and then recessing at the time that our portion
of the debate is in close proximity to beginning, allowing
enough time for Members to get over there for when it does
begin.
And I thank the Chairman and yield back.
Mr. Coble. I thank the gentleman----
Mr. Conyers. Mr. Chairman?
Mr. Coble. The gentleman from Michigan?
Mr. Conyers. May I add to this discussion? First of all, I
want to commend Jerry Nadler for initiating this discussion. I
think that this conflict of an important bill coming out of
Judiciary, being on the floor and we being overlapped with
important hearings and distinguished witnesses at the same
time, that this should serve as an example for all of us that
this should not happen again under any circumstances for the
remainder of the 113th Congress.
Mr. Coble. Well, I thank the gentleman.
After having said all of that, I think we need to move
along because we have out-of-state witnesses here. And as I
say, I don't want to keep you all here until the last dog is
hanged tonight.
So, we traditionally swear in our witnesses.
[Witnesses sworn.]
Mr. Coble. And I now am pleased to recognize our witnesses.
Our first witness today, Mr. Peter Jaszi, Professor of Law
at American University of Washington's College of Law and
Faculty Director of the Glushko-Samuelson Intellectual Property
Clinic. Professor Jaszi teaches domestic and international
copyright law as well as Law in Literature. Professor Jaszi
received both his J.D. and his A.B. degrees from Harvard
University.
Our second witness is Ms. June Besek. Correct
pronunciation, Ms. Besek?
Ms. Besek. Besek.
Mr. Coble. Lecturer in law at Columbia School of Law and
Executive Director of the Kernochan Center for Law, Media, and
the Arts. In her position she oversees studies on national and
international intellectual property issues. Professor Besek
received her J.D. from New York University and her B.A. from
Yale University.
Ms. Novik, our third witness is author and cofounder of the
Organization of Transformative Works. Ms. Novik is best known
for her fantasy and alternative history series of novels. She
received her Master's in Computer Science from Columbia
University and B.S. in English Literature from Brown
University.
Our fourth witness, Mr. David Lowery is a singer and
songwriter and lecturer at the Terry College of Business at the
University of Georgia. As a guitarist, vocalist, and
songwriter, Mr. Lowery founded the alternative rock band Camper
Van Beethoven and cofounded the rock band Cracker. He received
his B.A. in mathematics from the University of California,
Santa Cruz.
Our final witness is Mr. Kurt Wimmer, General Counsel for
the Newspaper Association of America, a nonprofit organization
representing publishers of more than 2,000 newspapers in the
United States and Canada. Mr. Wimmer received his degree--his
law degree and Master's degree from Syracuse University and his
Bachelor's from Missouri School of Journalism.
We welcome you all. And, in view of the time restraints, we
would appreciate your confining your statements, if you can, in
or about 5 minutes. There is a panel on the table that will
reflect green, amber, and red. When the red light appears, the
ice upon which you are skating will become thinner and thinner.
[Laughter.]
You won't be keelhauled, but you--we will ask you to--and
we try to comply with the 5-minute rule as well.
So, if--we will start, Professor, with you. You will be our
first witness.
Mr. Jaszi. Thank you, Mr. Chairman. And thanks to the
Members of the Committee----
Mr. Coble. Mike.
Mr. Jaszi [continuing]. For this invitation.
Mr. Coble. Thank you, John, for your comments.
Mr. Conyers. No, thank you, sir.
TESTIMONY OF PETER JASZI, PROFESSOR, FACULTY DIRECTOR, GLUSHKO-
SAMUELSON INTELLECTUAL PROPERTY CLINIC, WASHINGTON COLLEGE OF
LAW, AMERICAN UNIVERSITY
Mr. Jaszi. Thank you, Mr. Chairman. And thanks to the
Members of the Committee for this invitation.
The fair use doctrine helps guarantee the continued
international permanency of the United States as a site of
innovation. After a rocky start, the courts now are doing an
excellent job of implementing the legislative direction
contained in section 107, which, itself, restated more than a
century of case law. Fair use doesn't need reform, but it could
use legislative support. For example, Congress could exempt
noncommercial creators of derivative works from potentially
onerous statutory damages, which today chill the exercise of
fair use. Congress could further enable fair use by amending
section 301, which deals with Federal preemption of state law
to bar some or all contractual waivers of the fair use right.
In my written testimony, I tried to describe the current
unified field theory of fair use that informs decisions from
every part and at every level of the Federal court system
today. As already noted, that unified field theory is keyed to
the notion that uses that advance transformative ends, those
that repurpose and add value to copyrighted material they
employ, deserve special consideration.
Yesterday, a Second Circuit Court of Appeals panel provided
an illustration. The Bloomberg Professional Service had posted
the recording of a conference call between executives of the
Swatch Group and hundreds of registered financial advisors on
its site, and Swatch had complained. In finding fair use, the
court noted that, ``In the context of news reporting and
analogous activities, the need to convey information to the
public accurately may, in some instance, make it desirable and
consonant with copyright law for a defendant to faithfully
reproduce an original work. In such cases,'' the court
continued, ``courts find transformation by emphasizing the
altered purpose or context.'' The court also made it clear that
Bloomberg's use of the entire recording was reasonable, in
light of its purpose of disseminating important financial
information to American investors and analysts. The point,
again, and I want to stress this, was that Bloomberg was
serving the collective public interest in access to
information, without working great harm to any competing
private interest.
It is not surprising to see fair use at work in the
journalism sector given that the Supreme Court has stressed the
intimate connection between the fair use doctrine and the First
Amendment. More broadly, however, we have seen, over the past
20 years, how the fair use doctrine is experienced as an
important positive right by readers and publishers, movie
producers and remix artists, tech incumbents and startups,
teachers, developers of educational materials, artists,
scholars, librarians, providers of disability services,
filmmakers, and other contributors to the kind of progress that
our IP laws serve. Of course, not every person in every sector
likes every fair use decision. But, we have all benefited,
collectively, from this general, pro-innovation trend in our
copyright law.
The pattern of decisions, of which this Bloomberg case is
the most recent example, articulate no a priori limits on the
range of situations to which the doctrine is potentially
applicable. They don't limit it to situations involving the
creation of new copyrightable works or anything of the kind.
And, given the ultimate goal of copyright, which isn't to favor
any particular form of expression over others, but to promote
the production and dissemination of useful knowledge, there is
no apparent practical, non-ideological reason why such
limitations would be desirable. At the very least, those who
would now seek to rein in the future development of the fair
use doctrine, have a heavy burden of persuasion to demonstrate
why doing so would be in the public interest.
We value fair use for its flexibility and dynamism, which
allow courts to adapt the doctrine to new social, economic, and
especially technological circumstances. This isn't to denigrate
the value of static specific exceptions in copyright law, like
sections 108 for libraries or 110 for education or 121 for the
print disabled. Where these apply, they are valuable, highly
valuable, to particular groups of users, because they provide
high levels of certainty. They are, in effect, safe harbors
even though never comprehensive and often not up to date. As
Congress and the courts have recognized repeatedly, these
provisions do not supplant fair use, rather they are
supplemented by it.
As Mr. Coble noted, one common critique of fair use is that
its commendable flexibility gives rise to unacceptable levels
of uncertainty. In fact, however, recent scholarship tends to
show that fair use jurisprudence is both patterned and
predictable. Lawyers and their clients actually have relatively
little real difficulty forecasting likely fair use outcomes in
areas where there are direct or even analogous precedents. Also
contributing something to the predictability of fair use is the
work of professional organizations that are developing fair use
best practices, documents to guide their constituents in
exercising their fair use rights responsibly and
constructively, a tendency to which Mr. Conyers referred
earlier.
Finally though, the greatest credit for the healthy state
of fair use law belongs to users large and small who invest
time and thought in making sound fair use decisions, thus
helping to assure the condition of cultural flourishing, which
is the constitutional objective of copyright in the United
States. I should add, then, that we at American University have
been very pleased and proud to be involved, to some extent, in
the work of developing fair use best practices. And have, over
the last decade, been able to collaborate with a wide range of
different professional organizations beginning with documentary
filmmakers----
Mr. Coble. Pardon?
Voice. Are you going to----
Mr. Coble. Yes.
Mr. Jaszi [continuing]. Moving over the decade through a
number of different areas of practice to a present day when we
are working with the College Art Association on developing a
comprehensive code of best practices----
Mr. Coble. Professor----
Mr. Jaszi [continuing]. For future use----
Mr. Coble [continuing]. Your time is expired.
Mr. Jaszi [continuing]. For instance in visual arts.
Mr. Coble. Your time is expired.
Mr. Jaszi. Thank you.
[The prepared statement of Mr. Jaszi follows:]
Prepared Statement of Peter Jaszi, Professor, Faculty Director,
Glushko-Samuelson Intellectual Property Clinic, Washington College of
Law, American University
I teach copyright law at the American University law school here in
DC. For last decade or so, most of my work as a scholar, an activist
and (occasionally) a litigator has focused on the fair use doctrine,
which provides that under certain conditions, unlicensed uses of
copyrighted material should be considered non-infringing because they
contribute significantly to cultural progress and innovation in the
information economy--a doctrine that the recent Commerce Department
copyright Green Paper referred to as ``a fundamental linchpin of the
U.S. copyright system.'' \1\
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\1\ Department of Commerce Internet Policy Task Force, ``Copyright
Policy, Creativity, and Innovation in the Digital Economy'' (July
2013), available at http://www.uspto.gov/news/publications/
copyrightgreenpaper.pdf.
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Over this period, I've come to the conclusion that fair use is
definitely alive and well in U.S. copyright law, and that, after a
rocky start, the courts are doing an excellent job implementing the
congressional direction contained in Sec. 107. Fair use doesn't need
legislative ``reform,'' but (as I'll explain) it might benefit from
certain kinds of legislative support in years to come--especially
relief from the operation of other statutory provisions (such as the
current law of statutory damages) that have the unintended consequence
of discouraging its legitimate exercise.
At the outset, I should mention that whatever else can be said
about it, my preoccupation with fair use and its benefits has an
honorable pedigree. Like many copyright lawyers of my generation, I was
introduced to the doctrine at a time when it did not loom as large as
it does today--perhaps because copyright wasn't such a strong presence
in our individual and collective cultural lives. Nonetheless, Professor
Benjamin Kaplan, from whom I learned the basics of the subject in the
early 1970's, was prescient about the importance of fair use--as he was
about so much to do with the future of copyright and its coming
engagement with new technology. Later in that decade it was Professor
L. Ray Patterson who caught or attention by pointing out how much more
important user-friendly copyright doctrines like fair use were likely
to become in the aftermath of the Copyright Act of 1976.
It's been 40 years, more or less, since I first spoke in public
about fair use doctrine. In 1983, just prior to the Betamax
decision,\2\ the doctrine (which traces its origins in our courts back
to 1841) wasn't in particular good shape. After its codification in
1978, a bad decade or so of false starts in judicial interpretation had
ensued.\3\ In the midst of it I took the unconventional step--more out
of naivete than as a matter conscious choice--and referred to fair use
as a ``right,'' I was promptly taken to task by my more experienced co-
panelists.
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\2\ Sony Corp. Of Amer. v. Universal City Studios, Inc., 464 U.S.
417 (1984).
\3\ Today I'll draw a veil across this unfortunate historical
episode, which is happily and firmly behind us; I've written about it
elsewhere should anyone be interested, in ``Getting to Best Practices:
A Personal Journey Around Fair Use,'' 57 J. of the Copyright Soc'y of
the U.S.A. 315 (2010).
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Today, in a very different legal environment, I'd like to make four
points about fair use, of which first is that the proposition that
citizen's ability to make some socially and economically positive uses
of copyrighted material without permission is a right, and now widely
recognized as such--including acknowledgements by both the Congress \4\
and the Supreme Court, which has stressed the connection between fair
use and the freedom of expression secured by the First Amendment:
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\4\ 17 U.S.C. Sec. 108(f)[4] (``Nothing in this section . . . in
any way affects the right of fair use. . . .'')
Copyright contains built-in First Amendment accommodations . .
. [T]he ``fair use'' defense allows the public to use not only
facts and ideas contained in a copyrighted work, but also
expression itself in certain circumstances.\5\
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\5\ Eldred v. Ashcroft, 537 U.S. 186, 219 (U.S. 2003)
In a procedural setting, fair use typically is invoked (like other
rights) as a affirmative defense, but in daily life, it's experienced
as a important positive right by readers and publishers, movie
companies and remix artists, tech giants, start-up innovators,
teachers, developers of educational materials, artists, scholars,
librarians, filmmakers and a long list of other contributors to the
condition of ``cultural flourishing'' that our copyright system exists
to support.
My second point grows directly from this one. Today, fair use is
working! For this we have two groups to thank--the federal courts and
the ``user community'' (which means, of course, just about all of us,
from time to time and situation to situation). The courts, with a big
push from Judge Pierre Leval's classic law review article of 1990,\6\
managed to extricate the doctrine from the morass into which it had
sunk in the 80's, and set it on a new course--the critical lever here
being (of course) the notion that certain cases of productive
unlicensed use, should be deemed fair and noninfringing because of
their transformative purposes--a determination that, once made,
cascades through the other statutory factors defined in Sec. 107.
---------------------------------------------------------------------------
\6\ ``Toward a Fair Use Standard,'' 103 Harv. L. Rev. 1105.
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A word more may be in order here about the ``new'' jurisprudence of
fair use and its implications. It arose, at least in part, as a result
of two critical insights. The first was that, while many of the most
characteristic forms of fair use in our daily cultural life (as
acknowledged in the preamble to the statutory section) were private
and/or non-commercial, most of the value-added uses that had been
recognized as fair in decided cases were both public and commercial--
and that would continue to come before the courts. The other insight
was that, at least in potential, any use of a copyrighted work can be
licensed (and that, with new technology, more or less frictionless
licensing was an ever more real possibility). So if the fourth fair use
factor--harm to an actual or potential market--were to continue to
dominate judicial analysis, the right often would lose out, and the
public would go without the benefit of the innovation that was foregone
or suppressed, whether a hard-hitting new documentary or a refinement
of Internet search technology.
The effect of the new jurisprudence of fair use has been to
decenter the fourth fair use factor and to install in a central
position the first factor inquiry into the purpose of the use, with an
emphasis on whether the use can be considered a ``transformative''
one--that is, one that, as the Supreme Court put it in 1994, whether a
use ``merely `supersede[s] the objects'' of the original . . . or
instead
adds something new, with a further purpose or different character,
altering the first with new expression, meaning, or message[.]'' \7\
We've now had more than two decades of experience with this approach,
and--as University of California-Los Angeles Professor Neal Netanel has
noted--the courts have arrived at a point where the standard fair use
analysis, which incorporates by reference all the considerations
highlighted in the statute, has effectively been reduced to a two-stage
inquiry: Does the use have a transformative purpose, and is the amount
of copyright material used appropriate to that purpose? \8\ This
development makes the doctrine more widely available and (as I'll
discuss below) easier to predict.
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\7\ Campbell v. Acuff-Rose Music, 510 U.S. 569, 579 (1994), quoting
Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (this being the
decision by Justice Story that launched fair use in the courts).
\8\ ``Making Sense of Fair Use,'' 15 Lewis & Clark L. Rev. 715
(2011).
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Recently, judicial decisions also reminded us that there may be
more to the interpretation of the public-facing fair use doctrine than
the four enumerated statutory factors, which by the terms of the
stature clearly were not intended to exhaust the range of
considerations that a court could take into account in making its
determination. Thus, for example, in his recent decision in the Google
Books case, Judge Denny Chin make clear reference to the ``public
interest'' that would be served by allowing this digitization project
to go forward under the rubric of fair use--as an independent
consideration supporting the conclusion of his transformativeness-based
analysis of the four factors.\9\
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\9\ Authors Guild, Inc. v. Google Inc., 2013 U.S. Dist. LEXIS
162198 (S.D.N.Y. 2013), at *10-14 & 27-29 (``In my view, Google Books
provides significant public benefits'').
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But no amount of forward looking judicial interpretation of the
doctrine would have been enough had the constituent parts of what we
describe with the ungainly designation of the ``user community'' not
been willing to step up and make their own contribution to develop fair
use by employing it and--where necessary--defending its exercise. Many
groups deserve credit here: on the one hand, of course, libraries and
tech startups, but also their occasional sparring partners commercial
publishers and entertainment companies. All have made investments in
``growing'' the fair use doctrine, and those investments have paid off.
\10\
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\10\ Thus, for example, what is arguably the most significant
single fair use decision after Campbell, Bill Graham Archives v.
Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. N.Y. 2006), was the
direct outcome of arguments present by a commercial publisher.
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Fair use, one might say, is like a muscle--it will grow in strength
if it is exercised, and atrophy if it is not. But, by the same token,
fair use is hardly unusual or exotic today. Everyone who makes culture
or participates in the innovation economy relies on fair use
routinely--whether they recognize it or not. Participants in the U.S.
entertainment and information industries have well-established
standards and norms relating to fair use; some, like book publishers,
have long been accustomed to relying on the doctrine explicitly, both
in and out of court, while others, like journalism, would not
necessarily recognize their time-honored practices of unlicensed
quotation from source material as falling under that legal designation.
Something similar can be observed in the arts: for example, while there
is a lively argument about the outer limits on ``appropriation art''
practices that should be sanctioned under fair use,\11\ most working
artists will acknowledge that they rely extensively on their ability to
quote the work of others in less flamboyant ways. What's notable about
the current situation is that more and more business and practice
communities are actively acknowledging the ways in which their
contributions to our collective cultural and economic life depend on
the ability to exercise the right of fair use in appropriate
circumstances.\12\
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\11\ As evidenced by responses to the decision in Cariou v. Prince,
714 F.3d 694 (2d Cir. N.Y. 2013).
\12\ A eloquent example--Georgetown Law School Professor Rebecca
Tushnet's 2013 submission to the Commerce Department copyright task
force--is to be found at www.ntia.doc.gov/files/ntia/
organization_for_transformative_works_comments.pdf.
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Which brings me to my third point. As recently as a decade ago,
critics of fair use on the left and the right were calling attention to
what they described as its ``vagueness'' and unpredictability. Today,
even those critics have come to recognize the desirable flexibility of
an open-ended fair use doctrine, but this grudging acknowledgement has
linked to continuing expressions of doubt about the doctrine's
uncertainty of application. The current state of the law is proving
those critics wrong. Although, like any other legal doctrine, the
application of fair use may sometimes be uncertain in true cases of
first impression, lawyers (and their clients) have little real
difficulty forecasting likely outcomes in areas where there are direct
or analogous precedents.
Scholars have demonstrated that fair use law is in fact more
patterned, more predicable, and hence more reliable than the critics
have claimed. Recently, New York University Professor Barton Beebe and
Loyola University of Chicago Professor Matthew Sag, have employed
rigorous empirical methodologies to arrive at this conclusion \13\ Two
other comprehensive studies of the fair use doctrine in the United
States, which emphasize its internal consistency and predictability,
also deserve special mention--one by University of Pittsburgh Professor
Michael Madison and another by University Of California, Berkeley,
Professor Pamela Samuelson.\14\ Samuelson, one of the most respected
figures in United States Copyright law, surveyed the entire landscape
of fair use case law and grouped the decisions into `policy relevant
clusters'. She concluded that ``once one recognizes that fair use cases
tend to fall into common patterns'', the ``fair use is both more
coherent and more predictable than many commentators have
perceived''.\15\
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\13\ Beebe, Barton Beebe, An Empirical Study of United States
Copyright Fair Use Opinions, 1978- 2005, 156 U. Pa. L. Rev. 549, 574-5
(2008); Matthew Sag, Predicting Fair Use, 73 Ohio St. L.J. 47 (2012).
\14\ Michael J. Madison, A Pattern-Oriented Approach to Fair Use,
45 Wm. & Mary L. Rev. 1525 (2004); Pamela Samuelson, Unbundling Fair
Uses, 77 Fordham L. Rev. 2537 (2009).
\15\ Id. at 2541.
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Also contributing to the predictability of fair use are groups like
the team I've helped to organize at American University, in
collaboration with Prof. Patricia Aufderheide, have been helping groups
of practitioners to develop fair use Best Practices documents to guide
their constituents in exercising their fair use rights responsibly and
constructively.\16\ And -most important of all--users, large and small,
have been investing time in making sound fair use decisions, and
resources in carrying them through to successful conclusion.
---------------------------------------------------------------------------
\16\ Patricia Aufderheide and Peter Jaszi, Reclaiming fair use: How
To Put Balance Back in Copyright (2011)
---------------------------------------------------------------------------
Here I'd also stress a fourth point: Although there may be aspects
of the copyright law that could benefit from modest updating to make
them more appropriate to the new conditions of digital information
exchange, fair use is not one of them. In fact, the last decade has
seen a proliferation of decisions applying this flexible, purpose-based
doctrine to uses in the digital domain, from the development of
interoperable software products and Internet search technology, to the
practice of remix culture, though mass digitization in the promotion of
access to knowledge. Until recently, some had argued that the federal
courts were developing two competing (or at least potentially
inconsistent) cultures of transformative fair use--one in the Ninth
Circuit, where most cases specifically involving new digital
technologies had been litigated, and another in the Second, the long-
time home of fair use decision-making involving more traditional forms
of culture-making. But (putting aside the unlikely chance of
significant revision on appeal), the recent decisions of Judge Harold
Baer in Authors Guild v. HathiTrust and Judge Denny Chin in Authors
Guild v. Google Books, both from the Southern District of New York,\17\
demonstrate otherwise by relying significantly on relevant Ninth
Circuit precedents with no direct counterparts in the Second. In
effect, in only a few short decades, the courts have developed a robust
``unified field theory'' of fair use which is fully capable of meeting
the digital challenge and should be allowed to do so, just as fair use
doctrine has been allowed, over more that 170 years, to adapt to other
changes in circumstance.
---------------------------------------------------------------------------
\17\ Authors Guild v. HathiTrust and Authors Guild, Inc. v. Google
Inc., 2013 U.S. Dist. LEXIS 162198 (S.D.N.Y. 2013).
---------------------------------------------------------------------------
I'd add here that the adaptation of fair use to the networked
information environment has been significantly enhanced by the work of
Congress and the agencies. Many of us were concerned in 1998 that the
new anti-circumvention provisions of the DMCA might spell the effective
end of fair use in the Internet environment, but these concerns were
met, in part, by Congress' foresight in incorporating the Sec. (a)(1)
triennial rulemaking into the DMCA, and the fair and conscientious
manner in which the U.S. Copyright Office, the NTIA, and--ultimately--
the Librarian of Congress have exercised the authority delegated under
this provisions. No rulemaking can ever satisfy everyone, and those of
us who have unsuccessfully proposed exceptions in this process would,
of course, prefer that they had been granted, and hope that they will
be in the future. That said, the procedure as it stands is
unnecessarily cumbersome. and imposes considerable costs on the often
poorly funded NGO's who bear the primary burden of proposing and
justifying exceptions. One modest reform would be to create a procedure
through which exceptions that have been renewed, in substantially the
same form, over a series of triennia, could be incorporated into the
statutory text itself.
I'll conclude, if I may, with a pair of suggestions, a trio of
recommendations, and a question for this subcommittee.
The first suggestion is simply this: Don't mess with fair use.
After a rough start post-1978, the doctrine has now been recognized for
the essential feature of copyright doctrine that it is, and tweaks or
improvements (whether intended to broaden or narrow the doctrine) could
have serious and adverse unintended consequences--discouraging exactly
the kind of new creativity that copyright is supposed to promote. The
doctrine works in practice, as already described, and it is also
theoretically sound.
One theoretical critique is that the new transformativeness-based
jurisprudence of fair use is somehow in conflict with the reservation
to the copyright owner, in Sec. 106, of an exclusive right to prepare
``derivative'' works (a category defined in the Act to include works in
which preexisting materials are ``transformed'' through re-use). This
argument misses the mark in two different ways. Most important, it
fails to recognize that all the Sec. 106 exclusive rights are made
specifically subject to exception in Sec. 107, which provides for fair
use. In addition, it overlooks the fact that the word ``transform''
means different things in different contexts: Thus, any slight
adjustment to an existing work renders it a ``derivative'' one within
the meaning of Sec. 101, but according the courts a ``transformative
purpose'' that can qualify a use as fair demands far, far more in the
nature of value added.
Finally, let me suggest--in the strongest terms--that you approach
with extreme caution any proposal to facilitate short-form, non-
precedential determinations of fair use disputes--whether by
administrative or judicial means. Fair use decisions belong in the
Article III courts, and the continued development of the doctrine, over
time, has been the result of the accrual of precedents from the federal
judiciary. Tampering with this proven scheme could only work mischief
with the functioning of this important doctrine.
My recommendations are these:
One. Although ``transformative'' fair use is thriving
in the courts, the same cannot be said of another branch of the
same doctrine--that is, private use. Once we took for granted
that members of society who had legitimate access to
information products could do a wide range of things with their
content, including uses for study, research and personal
entertainment. Increasingly, however, this understanding is
threatened in the digital environment, by contractual
provisions (often included as ``boilerplate'' in terms of
service offered to consumers on a take-it-or-leave-it basis).
Congress should consider taking action, perhaps in the form of
amendments to Sec. 301 of the Copyright Act, that would insure
that fair use survives such attempts at contractual override.
Two. I mentioned earlier that, all in all, Sec.
1201(a)(1) of the Copyright Act has produced an imperfect
compromise between the concerns of content owners who employ
technological protection measures to secure their content, on
the one hand, and legitimate users, on the other; not even that
much can be said of the so-called notice-and-takedown
provisions of Sec. 512, also introduced under the DMCA. As the
provision now stands, ISP's have every incentive to remove from
their services and platforms whatever on-line content that has
been designated, on no matter how superficial a basis, as
potentially infringing. By contrast, the provisions of Sec.
512(g), which describe a procedure by which such content can be
replaced on line at the demand of the individual or company who
originally posted it, are cumbersome and largely unworkable.
Clearly, Congress should consider the fact, documented in
several studies,\18\ that the public at large is losing access
to legitimate fair use expressions by virtue of Sec. 512--a
cultural problem that deserves congressional consideration, and
probably requires a legislative solution.
---------------------------------------------------------------------------
\18\ See Dena Chen, Musetta Durkee, Jared Friend, and Jennifer
Urban, ``Updating 17 U.S.C. Sec. 512's Notice and Takedown Procedure
for Innovators'' (Public Knowledge, 2011), available at http://
www.publicknowledge.org/files/docs/cranoticetakedown.pdf.
Three. By raising the apparent stakes for would-be
fair users, the current law of statutory damages has the effect
of significantly discouraging reliance on the doctrine by just
those individuals whose cultural contributions it is designed
to foster. Creative artists, independent scholars, filmmakers
and others sometimes forego fair use because they do not
understand or feel they cannot predict the application of the
``innocent infringement'' provisions of Sec. 504(c)(2) to their
situations. I'd suggest that a more straightforward, ``fair
use-friendly'' approach would be to bar statutory damages in
all actions for non-willful infringement brought against non-
commercial users--and to make clear that a good-faith belief in
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the fairness of a particular use negates willfulness.
The question I'll leave you with requires a preamble. As already
noted, we know that in the United States the fair use doctrine adds
materially to our cultural choices, our learning opportunities, and our
access to innovation. We can only wonder (with some bemusement) why
some of our most important foreign competitors, like the European
Union, haven't figured out that fair use is, to a great extent, the
``secret sauce'' of U.S. cultural competitiveness.\19\ But that's their
loss and our gain. The position may be different where some of our
other trading partners are concerned. In trade-based agreements that
are designed, in part, to ``harmonize'' national copyright laws between
the U.S. and less developed countries, limitations on copyright
protection (and especially fair use) typically go unaddressed. These
agreements often leave lingering and often crippling doubts in these
countries about whether (from the U.S. perspective) they are free to
follow our example and adopt a flexible, dynamic approach to
transformative uses in their national legislation. The presence of such
doubts may, I suppose, work to the short-term competitive advantage of
the U.S. But given the dependence of our national economy on the
success of the world economy, I would ask whether this one-sided
approach is really in our national interest--and (beyond that) whether
it is ethically defensible?
---------------------------------------------------------------------------
\19\ For a sense of the value that fair use (and allied doctrines)
contribute to the U.S. economy, see Thomas Rogers and Andrew
Szamosszegi, Economic Contribution of Industries Relying on Fair Use,
(Computer & Communications Industry Ass'n 2001).
---------------------------------------------------------------------------
__________
Mr. Coble. I failed to tell you folks, when the illuminated
red goes to illuminated yellow that is your 4-minute warning.
But, Miss--Professor Besek, you are next.
Ms. Besek. Thank you, Mr. Chairman--is that on?
Mr. Coble. Mike.
Ms. Besek. This one?
TESTIMONY OF JUNE M. BESEK, EXECUTIVE DIRECTOR, KERNOCHAN
CENTER FOR LAW, MEDIA AND THE ARTS AND LECTURER-IN-LAW,
COLUMBIA SCHOOL OF LAW
Ms. Besek. Thank you, Mr. Chairman and Members of the
Committee, for giving me the opportunity to be here today.
In early 2008, Columbia Law School sponsored a daylong
symposium titled Fair Use: Incredibly Shrinking or
Extraordinarily Expanding. What was apparent 6 years ago is
even more obvious now. Fair use is extraordinarily expanding.
Until recently, the courts held that generally it is not a
fair use if you copy an entire work. From the point where
copying an entire work generally defeats fair use, now copying
the full contents of millions of works can qualify as fair use.
So, why might this expansion spark concern? Fair use is an
essential part of U.S. copyright law, but it isn't meant to be
a carte blanche to make unlimited use of others' works, even
for a socially beneficial cause. The rights of creators and the
interests of users have to be balanced.
How did the law move so far so quickly? Well, the principal
reason for this expansion has been the increasing significance
of transformative use in evaluating fair use. This happened
since the Supreme Court's decision in Campbell against Acuff-
Rose. You may know that opinion; it had to do with a parody by
2 Live Crew of the song ``Pretty Woman.'' Now, the Sixth
Circuit had said 2 Live Crew did not make a fair use; it had
relied on an earlier case which said that commercial use is
presumptively unfair. The Sixth Circuit resolved factors one
and four, which are often considered to be the most important,
on the basis of this commercial use. Its decision wasn't
atypical. A lot of courts had been doing that, depending on the
commercial use and making commercial use virtually dispositive
of fair use. In reversing, the Supreme Court said commercial
uses can be fair, and that is one aspect of factor one. But,
another important one is transformative use, and that is using
a work in a way that adds something new, altering the other
work with new expression, meaning, or message.
Like Campbell itself, earlier fair use cases involved
productive uses. And they were premised on use of the work
itself, for example to annotate, to analyze, to create a
parody. But, post-Campbell cases began to interpret
``transformative'' in two significantly expansive ways.
First, to encompass not only changes to the substance of a
work, but changes to how the work is used. They referred to
this repurposing as ``functional transformation.'' But, the
second aspect, and more concerning, is that courts began to
apply the transformative and functional transformation labels
not only to new works that incorporate unaltered copies of
earlier works, but also to new uses that exploit the prior work
without creating a new work. So, transformative has been
uprooted from its original context of new works to become
applied to a much broader context of new purposes, enabling new
business models rather than new works of authorship.
One troubling consequence is that if a court finds the
defendant's use of an author's work is transformative, because
it reaches new markets or a new audience, that finding can
usurp the author's derivative work rights, particularly with
respect to potential markets for the work. Because once a court
has found that a transformative purpose exists with respect to
a new use it tends, increasingly, to find that the new use
exploits a transformative market that doesn't compete with the
author's markets. Basically, authors' rights can hinge on a
race to the market for new and sometimes unanticipated uses.
Now, over the years, fair use case law has sometimes
strayed too far in one direction or the other. I mentioned
earlier that courts had been using commercial use as,
dispositive of factors one and four, because of the statement
of Sony that commercial use is presumptively unfair. And, in
Campbell, the court stepped in to try to restore that balance.
But, now the pendulum has swung the other way. A finding that a
use is transformative tends to sweep everything before it,
reducing the statutory multifactor assessment to a single
inquiry. It is important that the fair use pendulum once again
be moved back toward the center.
Despite the concerns I just voiced, fair use remains a rule
whose application is best made by judges, as the Congress
recognized when it first put fair use into the statute, back in
the 1976 Act. But, as we have seen, the pendulum can swing in
both directions. There are times when a legislative
intervention may be appropriate, when that application proves
too rigid or too expansive.
I think the current judicial expansion of fair use may
reflect concern to preserve the benefits of mass digitization,
notwithstanding the tension between mass digitizing and the
Copyright Act itself. I think, without altering the text of
section 107, Congress might separately address the problems of
mass digitization, which is skewing the law. If Congress turned
its attention to those issues, it might relieve the pressure
that risks turning the fair use doctrine into a free pass for
new business models, and restore fair use to its most
appropriate role of fostering new authorship.
Thank you.
[The prepared statement of Ms. Besek follows:]
Prepared Statement of June M. Besek, Executive Director, Kernochan
Center for Law, Media and the Arts and Lecturer-in-Law, Columbia Law
School
Thank you, Chairman Goodlatte, Chairman Coble, Ranking Member
Conyers, and members of the Committee. Good afternoon, ladies and
gentlemen. My name is June Besek. I am the Executive Director of the
Kernochan Center for Law, Media and the Arts at Columbia Law School and
a Lecturer-in-Law at Columbia, where I teach seminars on advanced
copyright and legal issues concerning individual creators--authors,
artists and performers. I have practiced in the field of copyright
since 1985, roughly half of that time in private practice and the other
half in academia.
I'm here today to discuss fair use, and to emphasize its rapid
expansion.
the importance of fair use
Fair use is an exception to the exclusive rights the Copyright Act
vests in authors. It excuses exploitations of a work that would
otherwise be infringing. Fair use is an essential part of U.S.
copyright law. It promotes cultural exchange and the creation of new
works by facilitating activities such as education and scholarship,
news, criticism and parody. Fair use is a critical means by which the
copyright law fosters creative expression.
The fair use doctrine is contained in section 107 of the Copyright
Act:
Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made
of a work in any particular case is a fair use the factors to
be considered shall include------
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a
finding of fair use if such finding is made upon consideration
of all the above factors.
In broad brush, the fair use factors look to the purpose for which
the copyrighted work was used; the type of work it is; how much was
taken; and how the new use could affect the actual or potential market
for the copyrighted work.
fair use: extraordinarily expanding
In early 2008 Columbia Law School sponsored a day-long symposium
titled Fair Use: ``Incredibly Shrinking'' or Extraordinarily Expanding?
What was apparent six years ago is even more obvious now: Fair use is
extraordinarily expanding.
Until recently, the courts held that ``[t]hough not an absolute
rule, `generally, it may not constitute a fair use if the entire work
is reproduced.''' \1\ From the point where copying an entire work
generally defeats fair use, now copying the full contents of millions
of works can qualify as fair use, regardless of whether it's done for
commercial or noncommercial purposes.\2\
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\1\ Infinity Broadcasting Corp. v. Kirkwood, 150 F.3d 104, 109 (2d
Cir. 1998), quoting Nimmer on Copyright Sec. 13.05[A][3] at 13-178
(1997).
\2\ See Authors Guild, Inc. v. Hathitrust, 902 F.Supp. 2d 445, 457
(S.D.N.Y. 2012), appeal pending (2d Cir.); Author's Guild, Inc. v.
Google, Inc., 2013 U.S. Dist. Lexis 162198, 2013 WL 6017130, appeal
pending (2d Cir.).
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If fair use provides the important benefits described earlier, why
might this expansion spark concern? Fair use is not a carte blanche to
make unlimited use of others' work, even for a socially beneficial
cause. The rights of creators and the interests of users must be
balanced. As the Supreme Court stated in Harper & Row v. Nation
Enterprises, reversing the Second Circuit's holding that Nation
magazine was protected by fair use when it used pre-publication
excerpts of President Ford's memoirs without authorization:
[C]opyright is intended to increase and not to impede the
harvest of knowledge. But we believe the Second Circuit gave
insufficient deference to the scheme established by the
Copyright Act for fostering the original works that provide the
seed and substance of this harvest. The rights conferred by
copyright are designed to assure contributors to the store of
knowledge a fair return for their labors.\3\
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\3\ Harper & Row, Publrs. v. Nation Enters., 471 U.S.539, 545-46
(1985) (citation omitted).
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The Court went on to warn that
It is fundamentally at odds with the scheme of copyright to
accord lesser rights in those works that are of greatest
importance to the public. Such a notion ignores the major
premise of copyright and injures author and public alike. . . .
[A]s one commentator has noted: ``If every volume that was in
the public interest could be pirated away by a competing
publisher, . . . the public [soon] would have nothing worth
reading.'' \4\
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\4\ Id. at 555 (citation omitted).
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the rise of transformative use
How did the law move so far so quickly? The principal reason for
this expansion has been the increasing significance of ``transformative
use'' in evaluating a fair use defense. The term ``transformative use''
is nowhere found in the fair use statute. It is not an entirely new
concept, however: ``productive use''--in the sense of producing new and
independent creative works--has long been part of the fair use
determination. In Campbell v. Acuff-Rose,\5\ the Supreme Court embraced
``transformative use'' as a highly influential (though not
determinative) factor in assessing fair use.
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\5\ Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)
(``[T]he more transformative the new work, the less will be the
significance of other factors, like commercialism, that may weigh
against a finding of fair use.'').
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Campbell v. Acuff-Rose involved a parody by 2 Live Crew of Roy
Orbison's song, ``Pretty Woman.'' Campbell asserted a fair use defense.
\6\ The district court found in Campbell's favor, but the Sixth Circuit
Court of Appeals reversed and held that fair use did not apply. Relying
on the Supreme Court's statement in Sony v. Universal City Studios that
``commercial use is presumptively an unfair exploitation'' of the
copyright owner's rights,\7\ the Sixth Circuit resolved the first
factor--the purpose and character of the use--in plaintiff's favor,
because 2 Live Crew's parody was commercial. \8\ On the fourth factor,
often said to be the most important, the court stated that because 2
Live Crew's parody was entirely commercial, it ``presume[d] that a
likelihood of future harm to Acuff-Rose exists.'' \9\ The Sixth
Circuit's decision was typical of many post-Sony courts, which had made
commercial use virtually dispositive of factors one and four. As a
result, it had become very difficult to make a commercial fair use, so
the Supreme Court intervened.
---------------------------------------------------------------------------
\6\ Campbell was 2 Live Crew's lead vocalist and the first named
defendant.
\7\ Sony Corp. of America v Universal City Studios, 464 U.S. 417,
451 (1984).
\8\ Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429, 1436-37 (6th
Cir. 1992) rev'd, 510 U.S. 569 (1994)
(citing Rogers v. Koons, 960 F.2d 301, 312 (2d Cir. 1992)).
\9\ Id. at 1438-39.
---------------------------------------------------------------------------
The Supreme Court reversed the Sixth Circuit's decision. It
criticized the appellate court for letting the commercial nature of the
use so heavily influence its fair use determination. The Court
explained that commercial use is not dispositive of fair use, and
commercial uses can be fair. But commerciality is only one aspect of
factor one; whether a use is ``transformative'' is a very important
consideration.\10\ To determine whether a use is transformative, one
looks at whether ``the allegedly infringing work ``merely
supersede[s]'' the original work ``or instead add[s] something new,
with a further purpose or a different character, altering the first
with new expression, meaning or message.'' \11\ As Judge Pierre Leval
explained in an article on which Campbell relied, ``[i]f . . . the
secondary use adds value to the original--if the quoted matter is used
as raw material, transformed in the creation of new information, new
aesthetics, new insights and understandings--this is the very type of
activity that the fair use doctrine tends to protect for the enrichment
of society.'' \12\
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\10\ Transformative use is not essential to fair use; as the
Campbell court observed, making complete copies, such as multiple
copies for classroom use, can be fair use. 510 U.S. 569, 579 n. 11 and
Sec. 107.
\11\ Campbell, 510 US at 579 (citing Leval, Towards a Fair Use
Standard, 103 Harvard L. Rev. 1105, 1111 (1990)).
\12\ Leval, supra note 11 at 1111.
---------------------------------------------------------------------------
The Supreme Court also emphasized that all four fair use factors
must be analyzed independently--there are no shortcuts. Still, it
observed that ``the more transformative the new work, the less will be
the significance of other factors, like commercialism, that may weigh
against a finding of fair use.'' \13\ As this quotation illustrates, it
bears emphasis that the Supreme Court embraced the inquiry into
``transformative use'' in the context of a second author's creation of
a ``new work.''
---------------------------------------------------------------------------
\13\ Campbell, 510 U.S. at 579 (emphasis supplied).
---------------------------------------------------------------------------
``functional transformation'' and making complete copies
Prior to Campbell, fair use cases involving transformative (or
productive) use were premised on changes made to the subject work
itself: annotating a work, analyzing or critiquing it, creating a
parody, and so on. Campbell itself involved a parody of ``Pretty
Woman,'' achieved through changes to both lyrics and music. Moreover,
even where a second author transforms the copied material, the amount
of the copying remains an important consideration. In Campbell, the
Supreme Court, although it stressed the ``transformativeness'' of the 2
Live Crew parody, ultimately remanded to the Sixth Circuit to determine
whether the resulting work copied too much--that is, more than was
needed to achieve its parodistic purpose.
As explained above, the Supreme Court defined transformative use as
use of a copyrighted work for ``a further purpose or different
character, altering the first with new expression, meaning or
message.'' \14\ Post-Campbell cases began to interpret
``transformative'' in two significantly expansive ways. First, to
encompass not only changes to the substance of a work, but also changes
to how the work is used, referring to this repurposing in a new work as
``functional transformation.'' Second, and more radically, courts began
to apply the ``transformative'' and ``functional transformation''
labels not only to new works incorporating unaltered copies of
preexisting works, but also to new uses that exploited the prior work
without creating a new work. ``Transformative'' thus became uprooted
from its original context of ``new works'' to become applied to a much
broader context of ``new purposes.''
---------------------------------------------------------------------------
\14\ Id.
---------------------------------------------------------------------------
This expansive view of what it means to be transformative has
opened the door to claims that making complete copies of multiple
works, even for commercial purposes, and even without creating a new
work, can be a fair use. This is a substantial departure from the long-
prevailing view that copying an entire work is generally not a fair
use.\15\ It also implies an important constriction of the author's
rights respecting ``potential market[s]'' for her work, because, once a
court has found a ``transformative purpose'' to a new exploitation, it
tends increasingly to find that the new use exploits a ``transformative
market'' that does not compete with the author's markets. In other
words, contrary both to statutory text and to the Supreme Court's
cautious reminder in Campbell, a finding that a use is
``transformative'' now tends to sweep all before it, reducing the
statutory multifactor assessment to a single inquiry.
---------------------------------------------------------------------------
\15\ The Supreme Court's decision in Sony v. Universal City
Studios--the ``Betamax case''--was a notable exception. There the Court
concluded that in-home copying of free broadcast programming for
timeshifting purposes was a fair use, because it was noncommercial and
merely allowed consumers to watch at a different time programs they
were invited to view without charge. Sony v. Universal City Studios,
464 U.S. 417. Sony also dubbed any commercial use ``presumptively
unfair''--a position from which the Supreme Court later retreated.
---------------------------------------------------------------------------
How did we get here? For example, in Bill Graham Archives v.
Dorling Kindersley Ltd., the court found defendant's use of complete
copies of Grateful Dead concert posters to be a fair use because the
copies were used, in reduced size, as part of a historical timeline in
a group biography of the Grateful Dead, rather than for their original
purpose. The court stated that ``[a] transformative use may be one that
actually changes the original work. However, a transformative use can
also be one that serves an entirely different purpose.'' \16\ The
Grateful Dead poster case, however, still concerned a new and
independent work (indeed, of a kind that has traditionally come within
the ambit of fair use): a biography.
---------------------------------------------------------------------------
\16\ Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605,
609 (2d Cir. 2006).
---------------------------------------------------------------------------
The more radical shift came in Perfect 10 v. Amazon.com. \17\
There, the Ninth Circuit Court of Appeals concluded that making
complete copies of Perfect 10's copyrighted photos, and providing
``thumbnail'' reproductions to consumers in response to image search
requests was a fair use. According to the court, ``even making an exact
copy of a work may be transformative so long as the copy serves a
different function than the original work.'' \18\ The court viewed
defendants' use as ``highly transformative'' because their search
engine served an ``indexing'' purpose which improved access to
information on the Internet, entirely different from the photographs'
aesthetic purpose, and because of the considerable public benefit the
search engine conferred.\19\
---------------------------------------------------------------------------
\17\ Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir.
2007).
\18\ Id. at 1165 (citation omitted).
\19\ Id. at 1165-66. Some of the distinctions that courts use to
support ``functional transformation'' are simply untenable. For
example, in American Inst. of Physics v. Schwegman Lundberg & Woessner,
P.A., 2013 U.S. Dist. Lexis 124578 (D. Minn. July 30, 2013), the court
found defendant law firm's internal use of scientific articles (reading
them to determine whether they represent ``prior art'' required to be
supplied to the USPTO with a patent application) was intrinsically
different from the plaintiff's purpose in publishing them (informing
interested readers about developments in various scientific
disciplines). In both cases the articles were read for information
about scientific developments; there is no transformative purpose here.
---------------------------------------------------------------------------
Two recent ``functional transformation'' cases involve mass
digitization of books from research libraries. Authors Guild v. Google
\20\ was a challenge to the mass digitization project initiated by
Google, which contracted with research libraries to digitize their
entire collections of published books. Google would provide each
library with a full text digital version of the books in their
collection. It would also retain copies of the full text database to
enable it to allow customers to search Google's database to identify
books of interest. A user's search would not retrieve a full-text
version of a book unless it were in the public domain, but it would
provide ``snippets'' of books in response to search requests, and
information as to how one might get access to particular books. Google
also uses its full text database to improve its translation
capabilities and enhance its search capabilities, from which it derives
revenue. Unlike the libraries, who purchased the books, Google did not
pay the authors or publishers for its creation of full-text permanent
retention copies.
---------------------------------------------------------------------------
\20\ Author's Guild, Inc. v. Google, Inc., 2013 U.S. Dist. Lexis
162198, 2013 WL 6017130, appeal pending (2d Cir.).
---------------------------------------------------------------------------
The Authors Guild and publishers filed suit for copyright
infringement against Google. Some time after the suit commenced, the
parties entered into a class action settlement agreement, which the
court declined to approve. The publishers subsequently entered into a
separate settlement agreement with Google and dropped out of the suit.
In November 2013, the district court entered judgment in favor of
Google on its fair use defense. The court found Google's use was
``highly transformative'' because Google had converted the books' text
into digital form and created a valuable word index. It had also
transformed the text into data that enabled new forms of research, like
data-mining. Google's profit motive was accorded little weight in the
decision, especially in light of the important educational purposes
served by its project. The court found that Google's activities had
little likely effect on the authors' actual or potential markets for
their works. The court did not consider the market impact that could
ensue were other for-profit enterprises to follow Google's lead in mass
digitizing library collections. The Authors Guild has appealed the
case.
Authors Guild v. Hathitrust \21\ was the second case addressing
massive databases of digitized books. Hathitrust is a nonprofit entity
housed at the University of Michigan. It manages a large shared digital
repository of millions of books that were scanned for Hathitrust's
constituent libraries as part of Google's Library project. The
repository is used for searches by library patrons (those search
results yield information but no excerpts of text), preservation, and
to provide full text of books in the libraries to persons who are
visually impaired. In a suit brought by the Authors Guild against
Hathitrust, the court concluded that Hathitrust's use was a fair use.
It considered the use transformative since Hathitrust and the libraries
were using the works for a different purpose than the originals--
providing a searchable index that enabled locating books, data mining,
and providing access for the print-disabled. The court found factor two
``not dispositive'' and concluded that the amount copied was reasonable
in relation to the transformative purpose. The court decided that there
was likely to be little impact on the market for plaintiffs' works
since the plaintiffs were unlikely to set up a licensing system for
this type of use. An appeal to the Second Circuit is pending.
---------------------------------------------------------------------------
\21\ Authors Guild, Inc. v. Hathitrust, 902 F.Supp. 2d 445, 457
(S.D.N.Y. 2012), appeal pending (2d Cir). Hathitrust was filed after
Authors Guild v. Google, but it was decided first.
---------------------------------------------------------------------------
potential consequences of ``functional transformation''
The ascendency of transformative use, and in particular,
``functional transformation,'' gives rise to concern that the fair use
pendulum has now swung too far away from its roots and purpose, now
enabling new business models rather than new works of authorship, and
potentially placing the U.S. in violation of international restrictions
on the scope of copyright exceptions and limitations. Lower courts
applying ``transformative use'' analysis appear at times to be ignoring
the Supreme Court's warning to consider the impact on copyrighted works
were the challenged use to become widespread. Similarly, their analyses
of ``transformative markets'' that fall outside the author's exclusive
rights risk inappropriately cabining the scope of the derivative works
right. The sheer volume of the taking in some of these functional
transformation cases has at times resulted in courts' failure to
consider distinctions among subject works that should be analyzed, if
not individually, then by categories of works with certain
characteristics. A capacious concept of ``transformative use'' also
seems to be swallowing up the more specific exceptions Congress has
crafted for particular uses, overriding their limitations and thus
disregarding the balance Congress set for those exceptions.
1. Some Courts Fail to Give Due Consideration to the Effect of
Defendant's Use on the Copyright Owner's Potential Market.
Some courts are giving short shrift to two important considerations
under factor four: First, the effect on the market if the use should
become widespread, and second, the appropriate scope of authors'
potential markets.
The analysis of factor four requires a court to consider
not only the extent of market harm caused by the particular
actions of the alleged infringer, but also ``whether
unrestricted and widespread conduct of the sort engaged in by
the defendant . . . would result in a substantially adverse
impact on the potential market'' for the original.\22\
---------------------------------------------------------------------------
\22\ Campbell, 510 U.S. at 590 (quoting Nimmer on Copyright,
Sec. 13.05 [A][4], at 13-102.61).
Similarly, the Court in Sony stated that a plaintiff must show that
defendant's use is harmful or that ``if it should become widespread, it
would adversely affect the potential market for the copyrighted work.''
---------------------------------------------------------------------------
The Court explained in more detail:
Actual present harm need not be shown; such a requirement would
leave the copyright holder with no defense against predictable
damage. Nor is it necessary to show with certainty that future
harm will result. What is necessary is a showing by a
preponderance of the evidence that some meaningful likelihood
of harm exists.\23\
---------------------------------------------------------------------------
\23\ Sony, 464 U.S. 417, 451. The Supreme Court placed the burden
of this showing on plaintiffs when the challenged use is noncommercial:
since fair use is an affirmative defense, the burden respecting harm
remains with defendants whose use is commercial.
Lower courts have in the past heeded this counsel. For example, in
A&M Records v. Napster,\24\ the Ninth Circuit found that Napster's
activities in promoting and enabling consumers to engage in file-
sharing of copyright-protected music CDs harmed the record companies'
future markets. Although the record companies had not yet entered the
market for digital downloads, they had ``expended considerable funds
and effort'' to commence licensing digital downloads. The court found
that the presence of unauthorized copies of plaintiffs' recordings on
Napster's file-sharing network ``necessarily harms'' the record
companies' potential market.\25\
---------------------------------------------------------------------------
\24\ A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir.
2001).
\25\ Id. at 1017.
---------------------------------------------------------------------------
In some of the more recent ``transformative use'' cases, however,
the courts have taken an unduly narrow view of the ``transformative''
use's effect on potential markets. For example, in Perfect 10, the
Ninth Circuit was unwilling to find market effect attributable to
defendant's transformative use because Perfect 10 could not demonstrate
current sales of thumbnails, even though Perfect 10 had just begun a
program to offer thumbnail photos (specifically, cellphone downloads)
in the market. In contrast to its decision six years earlier in
Napster, the Ninth Circuit did not find plans to enter a market
sufficient; it would recognize a market for thumbnails only if Perfect
10 could prove actual sales.
In Authors Guild v. Google, the court never considered the
consequences ``if the use should become widespread.'' Perhaps the court
implicitly assumed that no one but a Google could (or might want to)
create such a comprehensive and expensive database. But it could well
be that smaller, more narrowly tailored databases (e.g., financial
economics or travel guides) would be of value to specific entities or
individuals for a variety of purposes). The cost of book-scanning is
far less now than it was when Google began its digitization project, so
the prospect of a ``democratization'' of mass digitization is hardly
far-fetched, and may already be well in prospect. Or, another internet
service provider may seek a database to enhance its searches and bring
in more advertising revenue, just as Google has done. The court simply
never addressed the possible adverse effects on plaintiffs of a
multiplicity of such databases.
2. Confusion Between a Transformative Work and a Derivative Work.
Cases since Campbell have contributed to tension between the market
for derivative works and exploitation of transformative works.
Under the Copyright Act:
A ``derivative work'' is a work based upon one or more
preexisting works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound
recording, art reproduction, abridgment, condensation, or any
other form in which a work may be recast, transformed, or
adapted. A work consisting of editorial revisions, annotations,
elaborations, or other modifications, which, as a whole,
represent an original work of authorship, is a ``derivative
work''.
A transformative work is one that adds ``something new, with a
different purpose or a different character, altering the first with new
expression, meaning or message.'' \26\
---------------------------------------------------------------------------
\26\ Campbell, 510 U.S. at 579.
---------------------------------------------------------------------------
This overlap in terms and concepts has led to confusion. When is a
work ``transformed'' in such a way that it becomes a protectable (or
infringing) derivative work? On the other hand, when is it transformed
in such a way that the transformation significantly bolsters a fair use
claim? This decision has important implications for authors' potential
markets. If a court finds that defendants' use of an author's work is
``transformative'' because it reaches new markets or makes the work
available to a new audience, that finding could risk usurping the
author's derivative work rights. Ultimately, those rights could hinge
on a ``race to the market'' for new and sometimes unanticipated uses.
If the party allegedly making transformative use gets there first, that
market may belong to him and be foreclosed to the author or copyright
owner. Moreover, in some cases the copyright owner, who may have
obligations to its licensors or others, may be unable to move as
quickly as the putative ``fair'' user.
3. Fair Use is Swallowing Other Copyright Exceptions.
In some cases, expansive readings of fair use have virtually
swallowed other exceptions to copyright. For example, the Hathitrust
case's interpretation of fair use effectively reads section 108 (c) of
the Copyright Act and portions of section 121 out of the statute.
Section 108(c) permits qualified libraries and archives under
certain circumstances to make copies of published works in their
collections. It provides:
(c) The right of reproduction under this section applies to
three copies or phonorecords of a published work duplicated
solely for the purpose of replacement of a copy or phonorecord
that is damaged, deteriorating, lost, or stolen, or if the
existing format in which the work is stored has become
obsolete, if------
(1) the library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained at a
fair price; and
(2) any such copy or phonorecord that is reproduced in digital
format is not made available to the public in that format
outside the premises of the library or archives in lawful
possession of such copy.
The courts in both Authors Guild v. Hathitrust and Authors Guild v.
Google apparently accepted that libraries are free to copy in digital
form (or have copied for them) all published works in their
collections, without qualification. The Hathitrust court finds no
inconsistency between this comprehensive copying and section 108(c)
quoted above, because section 108(f) provides that nothing in section
108 ``in any way affects the right of fair use as provided by section
107. . . .'' \27\ But section 108(f) does not justify the court's
conclusion. Under fundamental principles of statutory interpretation,
statutes are to be interpreted in a manner that gives sense to the
whole.\28\ A statutory provision should not be interpreted in a manner
that renders another provision superfluous or redundant.\29\
Interpreting fair use to permit a library to copy every published work
in its collections leaves section 108(c) with no remaining
significance.
---------------------------------------------------------------------------
\27\ Sec. 108 (f)(4). The idea that fair use could make substantial
portions of section 108 irrelevant was clearly not anticipated by
Congress when the 1976 Act was passed. According to the House Report
accompanying the 1976 Act, ``[n]o provision of section 108 is intended
to take away any rights existing under the fair use doctrine. To the
contrary, section 108 authorizes certain photocopying practices which
may not qualify as a fair use.'' H.R. Rep. No. 96-1476, 94th Cong. 2d
sess. at 74 (1976).
\28\ 2 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory
Construction Sec. 46:5 (7th ed. 2013).
\29\ Bilski v. Kappos, 130 Sup. Ct. 3218, 3228-29 (2010) (citation
omitted); Kungys v. United States, 485 U.S. 759, 778 (1988).
---------------------------------------------------------------------------
Similarly, the Hathitrust rationale effectively swallows section
121 as well. That section provides an exception from copyright for the
blind and visually impaired. Section 121(a) states:
(a) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for an authorized entity to reproduce
or to distribute copies or phonorecords of a previously
published, nondramatic literary work if such copies or
phonorecords are reproduced or distributed in specialized
formats exclusively for use by blind or other persons with
disabilities.
As it did in setting a balance in section 108, Congress carefully
crafted section 121 to provide a balance between the interests of the
visually impaired and those of authors. In Hathitrust, however, the
court concluded that although defendants in its view ``fit squarely
within'' section 121, they ``may certainly rely on fair use . . . to
justify copies made outside of these categories or in the event they
are not authorized entities.'' \30\
---------------------------------------------------------------------------
\30\ Hathitrust, 902 F. Supp. 2d at 465 (footnote omitted).
---------------------------------------------------------------------------
The court's conclusion reads the essential conditions in section
121 out of the law.
4. Evaluating Fair Use ``In Gross.''
The sheer volume of works involved in the mass digitization cases
has led courts to eschew the case-by-case fact-based analysis fair use
has traditionally required. Of course it is not possible to evaluate
each work individually in these cases. But even significant differences
among subgroups of works seem irrelevant in these cases, e.g., fiction
versus nonfiction? Works no longer available on the market versus those
recently released? It's as though courts are according some kind of
``volume discount'' for fair use, where a massive taking justifies a
lower level of scrutiny in a fair use determination. It becomes
increasingly difficult to explain to authors and public alike a
copyright regime that rigorously examines the extent of a single
scholar's partial copying,\31\ while essentially according a free pass
to a for-profit enterprise's massive takings. It also risks putting the
U.S. at odds with international norms.
---------------------------------------------------------------------------
\31\ See, e.g., Craft v. Kobler, 667 F. Supp. 120 (S.D.N.Y. 1987)
(Leval, J.) (holding that a biographer copied more than was needed for
his critical examination of the letters of Igor Stravinsky).
---------------------------------------------------------------------------
5. Expansive Interpretations of ``Transformative Use'' Risk Putting
the U.S. in Violation of its International Treaty Obligations.
The United States is a member of a number of international
copyright treaties and agreements--e.g., TRIPs, the Berne Convention,
and the WIPO Copyright Treaty--that require that member states'
copyright exceptions (as applied to foreign works) meet the ``Three
Step Test.'' As set out in the TRIPS, that test provides:
Members shall confine limitations or exceptions to exclusive
rights to certain special cases which do not conflict with a
normal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the right holder.\32\
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\32\ TRIPS, Annex 1C, art. 13.
As the World Trade Organization's dispute resolution panel held in
a case in which the U.S. was found to be in violation of this test,\33\
under the first step, any limitations or exceptions must be clearly
defined and limited in scope. ``Normal exploitation'' embraces all
forms of exploitation that the author would normally seek to exploit
now or in the future. In other words, an exception may not compromise a
normal market for the work. The third and final step requires that
authors be protected from unreasonable loss of income; in some cases a
compulsory license or remuneration scheme is permissible if the
author's rights are adequately protected.
---------------------------------------------------------------------------
\33\ WT/DS160/R 15 June 2000 UNITED STATES--SECTION 110(5) OF THE
US COPYRIGHT ACT Report of the Panel.
---------------------------------------------------------------------------
An increasingly expansive fair use exception risks violating each
of these three steps. Fair use is open-ended; its consistency with the
first step depends on the scope of its application in particular cases.
The broader the scope of the works affected, or the wider the uses the
exception permits, the more likely that the exception will not be
deemed limited to ``certain special cases.'' By the same token, the
breadth of the exception's application can affect types of exploitation
that the author is now or likely will in the future be engaging in.
Finally, fair use is an all-or-nothing proposition. If a use is
``fair'', authors receive no compensation for the use. The U.S. has no
remuneration scheme in connection with fair use.
the fair use ``pendulum''
Fair use doctrine is not static. Over the years fair use case law
has sometimes strayed too far in one direction, favoring right holders,
or in the other direction, favoring users. For example, after the Sony
case, many lower courts interpreted the Supreme Court's statement that
```commercial use is presumptively an unfair exploitation' of the
copyright owner's rights'' to drive both the first and fourth fair use
factors, making commercial fair use difficult to achieve. In Campbell,
the court stepped in to restore the balance.
Now, the pendulum has swung the other way. Now it is
``transformative use'' that drives these two factors, which together
are generally determinative of fair use. It is important that the fair
use ``pendulum'' once again be moved back toward center.
a role for congress?
Despite the concerns just voiced, fair use remains a rule whose
application is best made by judges, as Congress recognized in codifying
the doctrine in section 107.\34\ As we have seen, the pendulum can
swing in both directions. But if Congress had best continue to leave
the general task of applying the section 107 factors to the courts,
legislative intervention may be appropriate when that application
proves too rigid or too expansive. Thus, after a series of decisions in
which lower courts misapprehended the Supreme Court's interpretation of
the second fair use factor as wholly insulating unpublished works from
quotation, Congress added a final sentence to section 107 to emphasize
that all the factors should be taken into account, and that the single
feature of a work's publication status was not dispositive.\35\
---------------------------------------------------------------------------
\34\ See, e.g., H.R. Rep. No. 96-1476 at 66: ``Beyond a very broad
statutory explanation of what fair use is and some of the criteria
applicable to it, the courts must be free to adapt the doctrine to
particular situations on a case-by-case basis. Section 107 is intended
to restate the present judicial doctrine of fair use, not to change,
narrow or enlarge it in any way.''
\35\ In Harper & Row v. Nation Enters., the unpublished nature of
the Ford memoirs was a key consideration in the Court's decision that
the Nation had not a made a fair use. Harper & Row, 471 U.S. 539, 561-
62. After that decision, the high level of protection accorded
unpublished works by some courts seemed largely to foreclose making
fair use of unpublished material, posing serious obstacles to
historians, biographers and others. E,g, Salinger v. Random House,
Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987). In
1992, Congress amended Sec. 107 to provide that ``[t]he fact that a
work is unpublished shall not itself bar a finding of fair use if such
finding is made upon consideration of all the above factors.''
---------------------------------------------------------------------------
Just as some judges overreacted to the Supreme Court's protection
of the right of first publication by overly-constricting fair use, the
current judicial expansion of fair use may reflect concern to preserve
the benefits of mass digitization notwithstanding the tension between
those activities and the Copyright Act's charge to secure the actual
and potential markets for works of authorship. Without altering the
text of section 107, Congress might separately address the problems of
mass digitization, including whether authors should be compensated for
publicly beneficial uses (compensation is not currently an option under
section 107). Congress' attention to those issues might relieve the
pressure that has risked turning the doctrine into a free pass for new
business models, and thus restore fair use to its most appropriate role
of fostering new authorship.
Thank you for this opportunity to provide comments to the
Committee.
__________
Mr. Coble. I thank you, Ms. Besek.
Ms. Novik?
TESTIMONY OF NAOMI NOVIK, AUTHOR AND CO-FOUNDER, ORGANIZATION
FOR TRANSFORMATIVE WORKS
Ms. Novik. I would like to thank the House Judiciary
Committee for inviting me to testify about fair use and its
role in promoting creativity.
I am not a lawyer, but as one of the creators and artists
whose work is deeply affected by copyright law, I hope to
explain how vital fair use is to preserving our freedom and
enabling us to create new and more innovative work.
Today, I am the published author of 10 novels, including
the New York Times bestselling ``Temeraire'' series, which has
been optioned for the movies by Peter Jackson, the director of
``The Lord of the Rings.'' I have worked on professional
computer games and graphic novels, and on both commercial and
open-source software. And I would have done none of these
things, if I hadn't started by writing fan fiction.
I found the online remix community, in 1994, when I was
still in college. For the next decade, before I wrote one word
of my first novel, I wrote fan fiction, built online computer
games, wrote open-source archiving software, and created remix
videos. I met hundreds of other artists creating their own work
and found an enthusiastic audience who gave feedback and advice
and help. We weren't trying to make money off our work. We were
gathering around a campfire. We were singing, telling stories
with our friends. The campfire was just a bigger campfire,
thanks to the Internet, and instead of telling new stories
about Robin Hood, we told new stories about Captain Picard,
because that is who we saw on our television every week.
Fair use gave us the right to do that. And, I am not a
lawyer, but I can tell you that for all of us, what we were
doing felt absolutely ``fair.'' We watched Star Trek every
week, religiously. We bought the t-shirts and the videotapes
and the spinoff books. And, when the DVDs came out, we bought
those too. Of course we were going to have our own new ideas
about the characters, about the universe, about what might
happen. That is what we do. We are imaginative creatures. And
of course we wanted to share our ideas with each other.
I learned to explore ideas in the remix community and to
see where they led me. And, eventually, they led me to my own
characters and my own universe. And now other artists--other
remix artists are writing fan fiction for ``Temeraire.'' And
they make fan art. And sometimes they even send me a stuffed
``Temeraire'' to give to my 3-year-old daughter. And I hope
that one day one of the fans writing ``Temeraire'' fan fiction
will go on to write their own bestseller or make their own
movie or game, perhaps with an idea sparked by something that I
wrote.
We all build on the work and ideas of people who came
before us. In fact, that is the only way to innovate. There
isn't a hard line between remix work and work that stands on
its own. Original work is at the end of a natural spectrum of
transformation. And fair use protects the spectrum. It creates
a space where artists can play with ideas and develop our
skills, share our work within a community, and learn by doing.
Licensing is just not a realistic alternative. On the
purely practical level the vast majority of remix artists doing
noncommercial work simply don't have any of the resources to
get a license, not money, not time, not access. I wrote my
first fan fiction story as a sophomore in college, taking five
courses, working a part-time job doing page layout for the
campus weekly, and occasionally calling my parents. If I had
had to pay someone and go through a complicated licensing
process to get to the point of writing that story, I would
never have done it and I might never have written my own novels
in the end. Imagine if kids who watched the ``Lone Ranger'' and
ran outside to make up a new adventure in the backyard had to
get a license before doing that. And today the Internet is
increasingly becoming our shared backyard.
And speaking also as a copyright holder, licensing is not a
practical option for most of us on the other side of the
problem as well. Most artists are not large media conglomerates
with substantial legal departments. I am delighted for other
artists to make fair use of my work. But, I don't want the
difficulty and the expense and the legal risk of having to give
a license to every kid who might want to write a story where
they become the captain of a dragon in the ``Temeraire''
universe.
More importantly, licensing still doesn't work, even if the
practical considerations are removed, because licensing
invariably stifles transformative work. I know authors who have
written licensed tie-in novels. And they always face a long
list of requirements. And, at the end of the book, they have to
bring everything back to the beginning. The point of licensing,
by the copyright holders, almost always is to avoid
transformation because, by definition, a transformative work is
one that doesn't match up to the copyright holder's vision.
I see I am running out of time, so I am going to skip a
little bit ahead and ask Congress to make it easier for
developing artists, like the one that I once was, who are often
at a significant disadvantage currently to exercise their fair
use rights. Most remix artists, especially ones just starting
out, don't so much as know a lawyer. They don't have the
resources to defend themselves against even the most frivolous
lawsuit or an automated takedown.
Congress could give tremendous support to the incubator of
remix art by making it less frightening to take the chance of
creating. Artists creating transformative work should not be
asked to pay more in damages than they have earned from their
work, so long as they acted in good faith. Congress could also
require platforms that create automated screening tools for
copyrighted work, to provide a straightforward way for artists
to identify their work as transformative and make the claim of
fair use. And, Congress could add a specific exemption for
noncommercial transformative work that would supplement fair
use the same way that libraries and teachers have specific
exemptions that provide a clear safe harbor.
In general, I strongly urge Congress to resist any
suggestion of narrowing fair use, including by trying to
replace it with licensing. Innovation starts with asking,
``What if?'' What if we could build a machine that could fly?
What if you crossed a cellphone and a music player? Our country
is a world leader in innovation precisely because here we ask
the ``what if'' questions.
Thank you very much.
[The prepared statement of Ms. Novik follows:]
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__________
Mr. Coble. Thank you, Ms. Novik.
Ms. Besek, you are the only witness so far to beat the red
light. [Laughter.]
Mr. Coble. Now I am imposing pressure upon Mr. Lowery.
Mr. Lowery, you are recognized for 5 minutes. [Laughter.]
Mr. Lowery. I may have a distinct advantage, Mr. Chairman,
since I am used to expressing myself in less than 5 minutes.
Mr. Coble. Well, we--as I said, we won't penalize you if
you fail in that effort.
TESTIMONY OF DAVID LOWERY, SINGER/SONGWRITER AND LECTURER,
TERRY COLLEGE OF BUSINESS, UNIVERSITY OF GEORGIA
Mr. Lowery. Okay. Chairman Goodlatte, Chairman Coble,
Ranking Member, and Members of the Subcommittee, my name is
David Lowery, and I am a mathematician, writer, musician,
producer, and entrepreneur based in Richmond, Virginia, and
Athens, Georgia. I also teach Music Business Finance at the
University of Georgia. Thank you for this opportunity to speak
with you today about the scope of fair use.
The rise of the Internet corresponds with recent attention
devoted to fair use as an excuse for trumping the rights of
authors established both in the U.S. and other countries. This
attention comes from technology companies, commentators,
lobbyists, and some parts of the Academy.
I am not concerned with parody, commentary, criticism,
documentary filmmakers, or research. These are legitimate fair
use categories. I am concerned with the illegal copy that
masquerades as fair use, but is really just a copy. This
masquerade trivializes legitimate fair use categories and
creates conflict where there need be none. These
interpretations of fair use have become important to my daily
life as a singer-songwriter. There are attempts by certain Web
sites and commercial services to pass off, as fair use,
versions of my work that are indistinguishable from my work. As
I will demonstrate, these works compete directly with licensed
instances of my work.
As a professional singer-songwriter, I believe that fair
use doctrine, as intended by Congress, is working in the music
business and music industry and should not be expanded.
Sampling and remixing is one arena where there has been a push
for expanded fair use. This defies logic, as there is no
emergency. Hip-hop relies on samples of other artists' work.
There exists robust market-based mechanisms for licensing these
samples. And hip-hop has gone on to become the most popular
form of music on the planet, without expanded fair use. ``Don't
fix it, if it ain't broke.'' I go into great detail in my
written testimony.
Another arena is song lyrics. Some commentators have
suggested that sites that reprint song lyrics with annotations
or meanings may be covered by fair use. I have personally
experienced the unauthorized use of my lyrics on one of the
most famous lyric annotation sites called RapGenius. Exhibit
one shows an example from this lyric annotation site. I
research lyric sites as part of my academic work at the
University of Georgia and produced the UGA ``Top Fifty
Undesirable Lyric Website List.'' After I published my most
recent update to the list, which placed RapGenius at number
one, the editor in chief of RapGenius transcribed the lyrics of
my song ``Low'' and began annotation of my lyrics. These
annotations are invisible in the exhibit. They appear only as
hyperlinks to popup windows. Now, note these links could refer
to anything.
How is this use any different from the use of my lyrics on
the non-annotated-and-licensed site? These are virtually
identical. The RapGenius instance of my lyrics is nearly
identical to this one. How is it fair use? It competes directly
with the revenue I receive from this licensed site. Following
this logic, I could reprint an entire book and occasionally
provide a hyperlink to the definition of a word. Indeed, the
owners of RapGenius seem to agree that their use is not fair
use, as evidenced by their recently completed licensing deals
with Sony, ATV Music, and Universal.
My final point, before thanking the Subcommittee for this
opportunity to speak today, is: What is so hard about asking
permission? As an artist, I only expect to be treated as I
would treat other artists. I believe that permission or the
legitimacy of consent and doing unto others are the very
foundations of civilizations. The rights' holders have never
been easier to look up. Millions of recordings can be
identified with an iPhone application or looked up in a public
database at no charge. It takes little effort.
In conclusion, I respectfully request that the Members of
the Subcommittee review the practical history of the
application of fair use defense to see that it is working as
intended. I hope you will agree with me that no legislative
expansion or governmental intervention is needed at this time.
Thank you very much.
[The prepared statement of Mr. Lowery follows:]
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__________
Mr. Coble. Thank you, Mr. Lowery. And you prevailed over
the red light.
Mr. Lowery. Barely. [Laughter.]
Mr. Coble. Mr. Wimmer?
TESTIMONY OF KURT WIMMER, GENERAL COUNSEL, NEWSPAPER
ASSOCIATION OF AMERICA
Mr. Wimmer. Chairman Coble, Members of the Subcommittee,
thank you for having me here today.
The professional reporting that newspapers publish starts
important conversations in the communities that we serve. We
recognize that this conversation often continues online, both
on platforms that our industry owns and on those owned by
others. Because our content is a central part of these
conversations, the scope of fair use is an important issue for
the news industry.
The newspaper industry spends about $5 billion a year
gathering and producing news and information. We are also
investing heavily in new online and mobile platforms to deliver
content to readers. As a result of these efforts, newspapers
have a larger audience than ever before. Newspaper circulation
revenue grew 5 percent in 2012 and digital-only circulation
revenue grew by 275 percent. Nearly 65 percent of all U.S.
adults read newspaper content in a typical week or access
newspaper content on a mobile device in a typical month. The
digital future, then, is bright. But there is much ground to
make-up because of the unprecedented disruption caused by the
digital transition. For every $15 in print advertising revenue
lost, newspapers have gained only $1 in digital advertising
revenue.
Competition for viewers in the digital world is fierce. And
our publishers increasingly find themselves competing not only
against companies that create original content, but also with
companies that build businesses on the backs of the very news
content that our members produce. Newspaper content makes up 66
percent of the content on news aggregation platforms such as
Google News. Newspaper content also makes up more than half of
the content on many popular digital platforms. These uses can
result in some limited traffic to newspaper sites, but most
don't result in meaningful revenue. The platforms using our
content, however, certainly benefit by using news content to
build and monetize readership on their sites without paying a
dime for the use of that content.
Some of the uses of newspaper content certainly qualify as
fair use, while others clearly do not. But this is an issue
that we think can be remedied by the courts rather than
Congress. We believe the current state of the Copyright Act,
including the formulation of fair use, strikes the right
balance and should not be changed. The fair use doctrine has
been developed over decades as a common law concept allowing
courts to respond to changes in technology. This case-by-case
analysis allows courts to balance the competing individual
interests at hand, and to capture both those needs and the
welfare of society as a whole.
A recent example of a court deftly applying this fair use
doctrine is the Southern District of New York's decision in
Associated Press v. Meltwater. Meltwater is a for-profit
reporting service that scraped AP articles and delivered
verbatim excerpts of them to its paying subscribers. The court
properly found that Meltwater's customers viewed the service as
a substitute for reading the original articles, judging by the
minuscule click-through rates. The court held that Meltwater's
republication of segments of news articles without additional
commentary or insight was not transformative and not a fair
use. Targeted enforcement actions focusing on commercial
ventures that simply take and resell our content may continue
to be necessary.
Of course, not all fair use decisions are decided
correctly. In particular, some courts' recent willingness to
give undue weight to the concept of transformative use is
troubling. This undue weight and the surprising types of rather
pedestrian uses that have been found to be transformative risks
allowing that element to subsume the other equally important
factors. We hope and expect that this imbalance in applying the
fair use factors will be corrected over time.
Another reason that the Copyright Act need not be changed
is because licensing arrangements are becoming more realistic
in many industries, including ours. We believe that many
participants in our ecosystem, particularly innovative startup
ventures and social media platforms, would really prefer to
deploy solutions that rely on licensed content rather than to
rely on questionable business models, such as scraping and
violation of copyright and terms of use. Licensing news content
allows that content to be distributed on new platforms, but
helps to support the cost of high quality original journalism.
In all, our goal in the digital world remains consistent
with our longstanding mission: We seek to inform audiences as
broadly as possible about the communities in which they live.
In the digital environment, we will seek the appropriate
balance of enforcement, licensing, cross-industry partnerships,
and deploying our own new platforms to achieve this goal. And
continued reliance on steadfast areas of law, such as fair use,
will be essential as we continue to move forward.
Thank you for the opportunity to testify. And I look
forward to your questions.
[The prepared statement of Mr. Wimmer follows:]
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__________
Mr. Coble. And you also prevailed, Mr. Wimmer. Thank you.
Mr. Wimmer. Well, Mr. Lowery had raised the bar.
Mr. Coble. And I am not penalizing you, Mr. Jaszi, by
association.
Because we try to apply the 5-minute rule to ourselves, so
if you could be terse in your response, we would be
appreciative. I will start.
Let me start with you, Mr. Wimmer and Mr. Lowery. What--
with the focus of transformative uses, what, in your minds, are
transformative works for the purpose of fair use and what is
not?
Mr. Wimmer. Well, it is a good question and it is one that
is very fact based. You know, the transformative works that I
have not been--that I really haven't been pleased with are the
ones that have sort of allowed secondary uses to simply take
copyright owners' work, use it in a very straightforward
matter, and claim it is transformative.
The case that really does stick in my craw is the Grateful
Dead case in which a publisher was making a coffee-table book
about the Grateful Dead, which seems to be sort of a
contradiction in terms, and took Grateful Dead posters over the
years and put them in chronological order. The court then found
that simply putting those posters in chronological order
transformed them into something else, which I really do not
agree with. The Bloomberg case, however, I think is an
interesting--which the professor talked about, is an
interesting transformative use case that I do think makes a lot
of sense for the reasons that the court announced just
yesterday.
Mr. Coble. Mr. Lowery, do you want to add to that?
Mr. Lowery. Well, yes. I mean, my example that I showed
before is an example which is--some commentators argue is a
transformative case, as you can see the reprinting of my lyrics
on a site, which has yet to license these lyrics.
And this site, which I am sorry about the lady on there,
but every ad I hit had something like this. I don't know if it
is because I was at the airport or what. [Laughter.]
Mr. Coble. No apology necessary.
Mr. Lowery. Yeah. [Laughter.]
But this is the same instance of my lyrics here. But some
commentators have claimed that this is transformative because
you can click on these hyperlinks and they might go to another
window or a popup or something like that that has maybe an
explanation of a word or says, ``Oh, he is referencing
Baudelaire, right here.'' Which, by the way, is a perfect
example of fair use. I subtly reference Baudelaire here. Well,
actually, I mean, that doesn't even involve fair use, because I
believe that is in the public domain. So this, to me, is a case
of something that is not transformative that people argue is
transformative. And so, it competes directly with this, for
which I make, well, micro-pennies for each page view. But it is
a market; it has been established. There are market-based
mechanisms. There are, you know, agencies that license these.
There is a free market in the reprinting of song lyrics.
Mr. Coble. Thank you, Mr. Lowery.
Mr. Lowery. Thank you.
Mr. Coble. Professor Jaszi, should a definition of
transformative be codified?
Mr. Jaszi. I think that----
Mr. Coble. Mike, please.
Mr. Jaszi [continuing]. The--that it is--it would be a
great mistake, at this time, to attempt to arrest this judicial
development or this process of judicial development that is
well underway. We have resisted, over time, codifying in detail
other aspects of the fair use doctrine. The results have been
enormously productive, in terms of social, cultural, and
technological innovation. For the same reason, I think, the
reduction to a narrow description of transformativeness would
be a great error at this time.
Mr. Coble. Thank you, sir.
Professor Besek and Ms. Novik, are there recent fair use
decisions with which you disagree? And, why?
Ms. Besek. Well, there a number of recent decisions which I
disagree with, but one comes to mind immediately. It was a case
that dealt with whether use within a law firm of certain
scientific articles was fair use or not. The argument for
functional transformation was that the law firm was trying to
decide if it needed to submit the articles to the PTO as
evidence of prior art. The argument was that, ``Well, these
articles are published so that people can understand new
scientific developments, and the law firm is only using them to
see if they are prior art.'' But they are both reading them.
They are both reading them to see what substance is contained
in the article and what it says about scientific development.
So, I don't think that that is a transformative use. It may be
excused on other grounds, but it is not transformative.
Mr. Coble. And you want to add to that Ms. Novik?
Ms. Novik. I am not a lawyer, so of course I am not as
familiar with various cases that are coming out. But, I will
say that I think transformative is one of those things where
you kind of know it when you see it.
And to actually speak to the case that Mr. Wimmer mentioned
of the Grateful Dead posters, I actually happened to see an
example of this. The coffee-table book presented the posters in
thumbnail form and in chronological order in a way that, at
least for me as a simple reader, I actually found did add
information and did not replace the original. You know, if you
want a big poster of the Grateful Dead on the wall, it is not
the same thing as looking at a page in a coffee-table book that
has seven or eight posters showing you the evolution of the
style of the Grateful Dead. So, I actually felt that that was a
reasonable judgment.
And, so far at least, I feel that the court has been
making--the courts have generally been making interpretations
of transformative that, at least for myself as a creator, have
made a certain sense.
Mr. Coble. I thank you for that.
And I plead guilty, I failed to prevail with the red light.
Ms. Chu is recognized for 5 minutes.
Ms. Chu. Thank you, Mr. Chair.
As cochair of the Creative Rights Caucus I am so glad to
see that we have individual creators here on today's hearing.
And, in particular, I want to welcome back David Lowery to
Capitol Hill. He is an outspoken singer-songwriter who is not
afraid to speak his mind on key copyright issues, for the
purpose of advocating for creative rights. So, thank you, Mr.
Lowery, for speaking out for individual creators who simply
want to preserve their right to make a living from their works,
but often face many unique challenges.
And, in fact, let me start with a question for you, which
is on remixes and illegal lyric Web sites. In your testimony,
you seem to indicate that there is a right way to sample music
and that a permission-based solution is possible. You offer
hip-hop and electronic dance as examples of music that rely on
sampling and remixing. So, why is it that some choose not to do
it the right way, when our current copyright system has
allowed, as you say, ``market-based mechanisms and conventions
to evolve and facilitate the licensing of sample and remixes?''
And then, let me also ask about lyric Web sites, as a
lesser-known kind of copyright infringement. And, you conducted
a study to figure out how rampant this type of online
infringement is and have even experienced that with your own
lyrics. Can you tell us how serious and prevalent of a problem
illegal lyric Web sites are?
Mr. Lowery. Well, I will start with your second question.
The lyrics were kind of a--they are an interesting case for the
digital age, because really for a lot of artists there was no
market for their lyrics because the fixed cost to print a book
was too high. So, this is actually a success story for the
Internet and music. One of the few ones. It is that there
actually is a market for relatively obscure artists to market
their, you know, essentially get some small amount of revenue
from their lyrics. So--and, generally, the lyric Web sites have
generally been licensed. Not all of them, but, looking at the
traffic, about half of them or a slight majority of the traffic
to these Web sites has been licensed. But, what started to, you
know, peak my interests is that there seemed to be backsliding
and a push for fair use, based around sort of annotations or
meanings of the songs. And these are directly competitive with
the, like I said, directly competitive with the market that
already exists which has sort of established a market price,
has established uses and all of that.
Speaking to EDM and hip-hop, I often hear that there has
been some sort of argument that hip-hop is not as innovative as
it once was. Because of various rulings and stuff like that,
people don't sample quite as much as they did before and stuff
like that. All I can say is, I just like to point out that the
market, basically, disagrees with that because hip-hop is now
more popular than it ever was. So those rulings that may have
sort of restricted some uses actually didn't affect the
popularity of hip-hop.
And finally, generally, having owned a studio for 20 years,
I see that people tend to do what copyright intended when they
are not able to obtain a license for a song that they sample.
They tend to do what was intended in copyright, they create a
new loop, we call them loops, to take the place of the sample.
That is, they create a new work, which is something that I
believe the founding fathers intended in the copyright clause.
Ms. Chu. Okay. Thank you for that.
Professor Besek, you expressed concerns with how there is
the use of fair use in trade promotion authority. And, I
understand that the courts don't always get it right,
especially as digital technology continues to facilitate the
reproduction and distribution of content in ways not
contemplated by Congress. But some people are pushing for
required exporting of our common law of fair use. What are the
potential consequences of this, if--to the U.S. standards of
fair use?
Ms. Besek. I think the idea of exporting fair use is a
really interesting one, although I don't think this is the time
to do it. And that is because we have enough uncertainty here
in our fair use doctrine that we should not be sending it to
other countries. But, the part that I think is especially
interesting is we are--I think some people are assuming that
fair use, when exported, would be the same. But we have had so
many different cases in the United States where the fair use
has switched from the district court to the Appellate Court to
the Supreme Court. And in another country it could have gone
the other way. So, I don't think we can assume that fair use,
applied in another country, would look like it does here.
And the other point is that other countries have very
different copyright laws, in the sense that they don't have a
blanket exception, they have very specific exceptions. And for
us to be imposing our fair use exception on them wouldn't sit
very well, when they, in fact, cover a lot of the same uses
that we do, but just in a different way.
Ms. Chu. Thank you.
I yield back.
Mr. Coble. The gentlelady's time is expired.
We have time for one more round of questions before we go
vote.
The gentleman from Pennsylvania is recognized for 5
minutes.
Mr. Marino. Thank you, Chairman.
Professor Jaszi, I would like to begin with you, sir. Where
do you draw the line on the fair use? Where do you draw the
line on copyright using, particularly, lyrics for music or
poetry?
Mr. Jaszi. I think that line is properly drawn, although it
is not easily drawn, between those uses which are genuine
value-added uses which do infuse commentary, critique, and
other added value into the material used----
Mr. Marino. So, you----
Mr. Jaszi [continuing]. And those----
Mr. Marino [continuing]. You don't support the fair use,
then? You just think that everything is game? Everything is--it
can be used by anyone out there?
Mr. Jaszi. I don't think that that was my answer.
Mr. Marino. Okay.
Mr. Jaszi. But I was about to say that, by contrast, there
may be situations, and perhaps some of the sites to which Mr.
Lowery refers are such situations, in which the added value or
repurposing is protectoral rather than real.
Mr. Marino. Okay, now----
Mr. Jaszi. It is my----
Mr. Marino.--I am at limited time here, sir. So, I would
love to discuss this all day long with you because you seem--
you are certainly aware of it. But I have to move on in my line
of questioning.
I hear constantly from musicians, artists, individuals who
supply the lyrics, supply the music, who are waiting on tables
in restaurants and they see their music, their lyrics on the
Internet. They receive nothing for that. Do you have any
problem with that, whatsoever?
Mr. Jaszi. I don't believe that the kinds of complaints
about the use of music in public places, for example to which
you refer, are even arguably covered by fair use. There may be
enforcement issues concerning how well the music industry does,
in fact, impose on restaurants which are subject to----
Mr. Marino. No, no. You misinterpreted. I am sorry, maybe I
wasn't clear enough. I don't mean using the material, playing
it. I mean that these artists, these writers who write the
lyrics then this music goes--makes a lot of money and then
pirates on the line, on the Internet are using this music and
selling it----
Mr. Jaszi. Again, I don't believe that anyone, certainly
not myself, would defend Internet piracy as a form of fair use.
It lacks all of the characteristics of transformative use,
repurposing and addition of value, which the courts have
identified, over the last 20 years, as the earmarks of fair
use.
Mr. Marino. Okay. So, you don't have a problem with the
courts then interpreting, as Attorney Wimmer--Wimmer, sorry,
stated, that let us let the courts--it is common law, let us
let them make that determination?
Mr. Jaszi. I am sorry, the----
Mr. Marino. Do you have any problem with the courts then
making that determination on the four points that they usually
use to determine whether there is transformation or not?
Mr. Jaszi. Oh, I think that is exactly the way we should
proceed.
Mr. Marino. Okay. Let me pose this scenario, and please
don't take it personally. You are a lecturer. And what would
your position be that, concerning the--wherever you lecture,
your employer pays you for that lecturing. So they video your
lectures and then next year they say, ``We don't need you
anymore. We are just going to run your videos and not pay you
for them.'' What is your position on that?
Mr. Jaszi. Well, they do that already. And---- [Laughter.]
Mr. Jaszi [continuing]. So far I have survived. It is
essentially a contractual thing.
Mr. Marino. But, sir, there is the key. Therein lies the
phrase, ``You have survived.'' Many, many of the people in the
entertainment industry and the writers, they are not surviving.
Fortunately for you, like myself, we have an income that we can
live on. But individuals with the talents that I don't have are
out there making--writing books and beautiful music, but yet
are getting maybe, maybe a few cents, if at all. So you--would
you--I would have to think that, based on what you said, you
agree with me that they must be compensated.
Mr. Jaszi. Oh, I absolutely agree. But the problem here is
not a problem with copyright. Just as I am defended in my
workplace by my contract, so the essential problem relating to
the return from the markets to creative people is a problem of
contract rather than copyright.
Mr. Marino. So, why limit it then, with your position, why
limit to copyright? Why not trademark? Why not patents?
Mr. Jaszi. Well, we do have a very vital doctrine of fair
use in trademark law. And the patent law, although it is
different in its nature, far shorter in duration, is also
subject to a number of public interest exceptions. So there
is----
Mr. Marino. But it is far more----
Mr. Jaszi [continuing]. Nothing unique here.
Mr. Marino [continuing]. It is--they are far more stringent
than we are in the copyright areas.
Mr. Jaszi. Well again, I would make a distinction, I think
I would probably differ slightly, with respect to trademark. I
think trademark law actually is as porous or more porous than
copyright law. But as to----
Mr. Marino. I see my time----
Mr. Jaszi [continuing]. Patent, there is a significant----
Mr. Marino.--I see my time has elapsed and we have to go
vote. But, thank you so much, I appreciate the exchange.
Mr. Coble. I thank the gentleman.
The gentlelady from California asked to be recognized.
Ms. Lofgren. Thank you, Mr. Chairman.
I would like you to ask unanimous consent to put into the
record some fair use principles for user generated video
content, submitted by a variety of advocacy groups.
Mr. Coble. Without objection.
[The information referred to follows:]
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__________
Mr. Coble. Ladies and gentlemen, the Committee will stand
in recess for this series of votes. But Members should be
advised that we will resume the hearing immediately after the
votes. We will continue until it is time for Judiciary to
manage its portion of H.R. 7, on the House floor.
So, we will stand in recess until we come back.
[Recess.]
Mr. Coble. And now we will continue to hear from the
gentleman from Pennsylvania until we wait for the others to
show up.
Mister--the gentleman from Pennsylvania?
Mr. Marino. An innocuous question for the lawyers and we
can start with Mr. Wimmer. If you have followed the cases that
have come down through the Federal courts, following the law,
the common law that has been established, and I am going to ask
the others to respond to it too, were you able to see that
there is a relative consistency in the courts' opinions?
Mr. Wimmer. You know, it is an interesting question. I
think there was a substantial amount of consistency until about
the late 90's, when the transformative use concept really
started to ascend. And now, when you look at cases, like the
Kelly v. Arriba Soft Case, and Perfect 10, and even through
Google Books, it almost seems as though the transformative use
piece has really unsettled the marketplace. But in terms of the
rest of the factors, it has been pretty consistent, I think.
Mr. Marino. Professor Besek and then Professor Jaszi?
Ms. Besek. I think that where you start finding
inconsistencies is when there is a genuinely new use. So, for
example, you see courts really split on issues. And it is hard
to predict whether a new use will be fair or not. I mentioned
earlier that, in some of these cases like Sony, the district
court goes one way, the Appellate Court goes another way, the
Supreme Court goes another way. And then, sometimes, the
decision that is originally written, turns out to be the
dissent. So that's where, I think, the principal areas of
difference between the circuits and the courts generally come
up.
Mr. Marino. Professor?
Mr. Jaszi. I actually, I think, have a somewhat different
take on this. I think that there is a lot more consistency in
the current pattern of decisions, what I referred to in my
remarks as, ``the emerging unified field theory of
transformative fair use,'' then I would actually have expected
for an approach to legal analysis that really is only 20 years
old. And, in particular, now we are seeing a convergence of the
approaches of the two circuits that have done the most
decision-making in this area, that is the Second and the Ninth,
which for a while we believed might be on different tracks.
But, which the last couple of significant opinions suggest are
probably not. Now, one can agree or disagree with that emerging
unified field theory. But, I think it is remarkably consistent,
even though, as Professor Besek states, sometimes it isn't
clear how it applies to the whatever the new thing is.
Mr. Marino. As a prosecutor, I am used to the criminal
statutes and it is fairly consistent. It is--I have done some
civil work in the banking industry, and I see how it does vary
from, you know, codified legislative law, whether it is at the
State or at the Federal level.
So, I yield back. Thank you.
Mr. Coble. I thank the gentleman.
And, while we are waiting, I recognize the distinguished
gentleman from Virginia, the Chairman of the full Committee.
Mr. Goodlatte. Thank you, Mr. Chairman.
Ms. Novik, and I direct this to Mr. Lowery too on this
issue of remixing. I, you know, I see that a lot. I see it is
very popular with people. And I understand it and I certainly
understand the attraction of taking somebody's work and
altering it and doing new things that can be very creative.
But, is there a way to--you know, it troubles me that if they
take that, remix it and are able to exploit it and offer it and
actually copyright their new work themselves, that the original
artist, whose work has been altered, doesn't benefit from that.
I wonder if you have any thoughts on that. And whether, if the
standard is that you are allowed to do this, if you have to get
a license if you are deriving a certain amount of commercial
benefit from it, as opposed to just doing it for fun and to
share with your friends, kind of thing.
Ms. Novik. Well, obviously I have spoken a great deal about
noncommercial transformative work, where, you know, it is
really--I mean, I talk to a lot of 16-year-old kids who are
writing their own Harry Potter story, for instance, where they
get to go to Hogwarts. And that is not hugely transformative.
They frequently participate in all the same events of the book.
But, at the same time, it is noncommercial. And so, I think the
four points of fair use balance each other out.
When it comes to commercial use, again, I feel that, you
know, there are cases like----
Mr. Goodlatte. You do agree that, if they did that and they
hit on something really cool, that they would have to get a
license from J.K. Rowling to do that?
Ms. Novik. I mean, I think that, you know, I think that
obviously, depending on what they were doing, a court would
have to look at it. I am sure if it were not and decide whether
it were fair use. And part of the decision would be, how
transformative it was. And, I think that most of us, most remix
artists appreciate that and understand that and don't actually
want to exploit work commercially when--and I am speaking as a
remix artist, somebody who is really trying to create new
forums.
Mr. Goodlatte. Sure. Let me ask Mr. Lowery what he thinks
about my question about whether, if you cross a certain
threshold in terms of commercial gain, that the rules should be
different.
Mr. Lowery. Often, I find that, although these are
noncommercial works by those who remix it, they are distributed
on commercial platforms. Like, for instance, I went to, I think
it is fanfiction.com, to look at that for a minute. And, right
away, there is advertising on that site. The problem is not
with so much with, you know, those who create the remixes. It
is that, the problem is that then there are these large
intermediaries who then disseminate this work, who do make a
profit. And they often encourage their users to make these
remixes. Which may be fair use or may not be fair use, but they
may be fair use when they are noncommercial. But, they become
commercial, they become vacuumed up, you know, sort of into the
commercial world and then monetized.
I have some examples on my laptop I can send to your
office, if you like.
Mr. Goodlatte. Thank you.
Mr. Lowery. Thanks for the question though.
Mr. Goodlatte. I am going to----
Ms. Novik. I would say----
Mr. Goodlatte. I am going to----
Ms. Novik [continuing]. If I just may add to that though,
that that doesn't actually change what the artist is doing. And
the----
Mr. Lowery. But they can still do it. It is just they don't
put it onto that Web site. They could still do that. It doesn't
infringe any rights of the remixer to continue to make that
work. It is just----
Ms. Novik. It is true----
Mr. Goodlatte. It is a good point for additional thought.
But, I need to ask another question before my time runs out.
So, I am going to ask all of you, so you are going to get
another shot at answering a question of mine, anyway. Professor
Jaszi states that fair use is working. So I am going to ask the
rest of you if you believe that fair use is working for
everyone or only for specific groups of users. And then we will
give you the last opportunity to rebut what your fellow
panelists have to say. And we will start with Professor Besek.
Ms. Besek. I think that fair use is working for some users,
but it is not working for all users, and it is certainly not
working for all right holders. One of the problems is these
recent cases that deal with one party exploiting lots and lots
of works at the same time are distorting fair use. The end that
they want to serve, for example in the indexing of books or
whatever, is truly a good one. I mean, you see these cases and
you think, ``What a great public benefit.'' But, the question
is how you get there, what is the appropriate means to that
end. And I think by trying to shoehorn it into fair use, we are
doing a disservice to the Copyright Act. And it would be better
if we could find another way to do that.
Mr. Goodlatte. All right. Let me jump ahead to Mr. Wimmer,
since I haven't asked him anything yet.
Mr. Wimmer. Thank you. I think it is generally working. You
know, we look at fair use both from the offensive side and the
defensive side. Newspapers and other news organizations have to
employ fair use, in terms of reporting on other people's work
and curating other people's content. At the same time, we try
to not have fair use become an impediment when we have
commercial appropriation of mass amounts of our content. So,
our view is that it is generally working. This trend toward
transformative use is concerning, but it has really been a
fairly short-term trend in the overall path of the common law.
So, we think the courts will eventually get it right.
Mr. Goodlatte. Ms. Novik?
Ms. Novik. I do believe that fair use is generally working.
I do, obviously, think that sometimes individual artists,
especially those working on noncommercial works, are at a
substantial disadvantage when they are faced with a large media
conglomerate or automated systems that essentially prevent them
from exercising their fair use rights.
Mr. Goodlatte. Mr. Lowery?
Mr. Lowery. I generally believe for music it is working. I
don't want to get too deep into it, but I think it is the
photographers who have probably been abused because you see
plenty of--I mean, they are just--their business model has been
really kind of wrecked by what I don't think was the intent of
fair use. But, I am not an expert on that. So----
Mr. Goodlatte. Well, on that point, if I might, Mr.
Chairman, do you think that Congress should set distinctions
based on the technology area between music, photography, books?
Mr. Lowery. The fair use does manifest itself in different
ways. I can't really say that--I feel like a little out of my
league on that legally what they should--I would be glad to
think about that and give you a more coherent answer.
Mr. Goodlatte. Yeah. We would welcome anything you want----
Mr. Lowery. Yes.
Mr. Goodlatte [continuing]. Any of you, want to submit----
Mr. Lowery. Okay.
Mr. Goodlatte [continuing]. Any of these questions----
Mr. Lowery. Thank you.
Mr. Goodlatte [continuing]. In writing. And, Professor
Jaszi, I promised you, you would get a final word on your
inflammatory statement.
Mr. Coble. And, Professor, if you could accelerate it
because we are on a red, red light here. [Laughter.]
Mr. Jaszi. I certainly agree that there are some groups of
creators who are struggling in the current marketplace. But, I
don't think that that struggle is really attributable to fair
use, as it is instead to other conditions.
I actually want to disagree, mildly, with Professor Besek
about her example of a situation in which fair use isn't
working. Because I believe, in fact, that the recent mass
digitization cases Author's Guild against HathiTrust and Author
Guild against Google, in the Southern District of New York, are
really excellent examples of the doctrine fulfilling its
function. In those cases, material is being dramatically
repurposed for non-superseding uses. The public interest, as
the judges in both cases have acknowledged, in those uses going
forward, is enormous. No existing licensing structures are
available to enable those uses. So far from thinking about mass
digitization and all the benefits that it has brought to
various communities, including the print disabled for whom it
has been my privilege to work on these issues, I must say that
I would count that as a story of success rather than a story of
failure.
Mr. Goodlatte. Thank you.
Mr. Chairman, I apologize for the extra time, but I thank
you for it.
Mr. Coble. You are indeed welcome.
The gentleman from Florida, Mr. Deutch?
Mr. Deutch. Thank you very much, Mr. Chairman.
I would like to thank the witnesses for coming and for
being so indulgent to our schedule. Thanks for the testimony. I
enjoyed reading it. I am sorry that I haven't been able to be
here for all of your presentations.
I already--I appreciate the ability to hear the lively and
ongoing debate about what constitutes fair use. I was able to
hear some of that. And I understood that it was a frequently
litigated area of copyright law. But it has been especially
interesting for me to hear the witnesses and in reading their
testimony just a very small sampling of the ongoing issues of
the development of the law in this field.
And what hearing all of this has reminded me is how
critical the entire previous body of law is to our current
understanding of fair use. It is easy to forget that, by
themselves, the words ``fair use,'' in this context, really
have no meaning. Instead, fair use is defined only by the
hundred-plus years of precedent in the United States. And, as
someone who has followed the ongoing negotiations for trade
deals with interest and with some concern, I am troubled at the
suggestions that we just simply insert the words ``fair use''
into our IP section.
Now, I support continuing to not only allow, but encourage
a country to develop fair-use-style exceptions, as our previous
trade deals have. But, what I don't fully understand is what
the words ``fair use'' would mean, when taken away from the
precedents that define them. And, because you can't build that
precedent into a trade agreement or export it, it makes it
exceedingly difficult to understand how this would work. And,
while our trade agreements allow flexibility for any countries
that so desires to adopt fair-use-style exceptions, mandating
it would just provide a loophole incapable of definition
through its countries who, frankly, often care little about IP,
can excuse the lack of protection for authors. Fair use has no
definition at all, in the context of a trade agreement.
So, in doing just a bit of research for the hearing, I
acquired some background materials of fair use precedent. What
I got was a multivolume set of books. [Laughter.]
This being just one. And I have only read a few chapters of
this one, to be perfectly honest with you. This is the first
volume. It is a 700-page, condensed---- [Laughter.]
Mr. Deutch [continuing]. It is a 700-page, condensed
version of our fair use law. Now, clearly, we are not seriously
considering including a 700-page footnote in our trade
agreements. Obviously, that doesn't work. Or, in the reverse,
we are not going to blindly assume that putting the words
``fair use'' or the four statutory factors into a trade
agreement would result in the inclusion of the decades of
precedent represented by the piles of books that are now
sitting on my desk.
Mr. Besek--I am sorry, Professor Besek, you discuss cases
in which our interpretations of fair use can threaten to move
the U.S. out of compliance with our international treaty
obligations. So, even in the U.S. fair use law, which is quite
actually fluid and vague on its own, if you erase all the
precedent behind fair use and started completely from scratch
in this country, would you see the fair use defined by future
courts in the same way that it is now?
[No response.]
Mr. Deutch. Well, let me just go on. So, going further
though, if you inserted section 107 into another country's
legal system, without including any of our defining precedent,
what is the likelihood that you would come up with remotely
similar meanings as other governments try to flush out what
this means?
Ms. Besek. It is certainly possible that there would be
some aspects of it that would be similar. But, they have such
different cultural and other factors, I don't think there is
any reason to think that it would track our fair use law. For
one thing, one of the aspects of fair use is that it attempts
to accommodate First Amendment concerns and those same concerns
don't necessarily apply in other countries. But, they have just
come from a different tradition, where they have had more
explicit, separate exceptions which--and not this general kind
of catch-all exception. And so, I don't know that they would
necessarily treat it the same way we did.
Mr. Deutch. And safe to say their explicit exceptions may
fill volumes of their own, in those countries.
Ms. Besek. Probably, that is true. I mean, they tend to
have more exceptions and more very specific exceptions. But
often they track the kinds of things that fair use would
embrace.
Mr. Deutch. But it wouldn't mean, in another country, it
wouldn't mean the same thing. It could easily--the concern,
obviously, is that it then becomes a loophole to completely
overturn what is a really sensitive balance that we have in
this country, based on volumes and volumes of precedent. There
is an important balance to be struck in our trade deals. And
the words ``fair use'' themselves, I think, don't bring us
anything.
Mr. Wimmer, I wonder if you would agree with that.
Mr. Wimmer. I do agree with it. I am not a trade expert, so
I might be getting a little bit out of my depth here. But I
have done legal work in about 20 different countries. And there
are common law legal systems and there are civil law legal
systems. We have a common law legal system, and that is the way
fair use has grown up here. That is true for England, true for
Canada, true for Australia. You go to all of the civil law
legal systems, where judges don't have the same tradition of
working to create precedent and expand precedent over time, and
they really can't cope in the same way with these types of
common law doctrines in a civil law society as we can. It is
hard for me to see it working, truthfully.
Mr. Deutch. Thanks, Mr. Wimmer, you may not be a trade
expert, but your insight, I think, is right on point and was
helpful.
And I appreciate the Chairman. And I yield back.
Mr. Coble. I thank the gentleman.
I am told the gentleman from Missouri has no questions.
I want to thank all the witnesses and those in audience,
because your presence here indicates more than a casual passing
interest in this very important issue.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
The hearing is adjourned.
[Whereupon, at 3:34 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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