Why fears about 'fair use' copyright law are unfounded
Over the past two weeks, I have been participating in a series of events and workshops explaining copyright "fair use" rights to South African stakeholders and officials. This week, Parliament has been hearing about fair use while it considers the Copyright Amendment Bill, part of which includes the introduction of a fair use right.
Rights management organisations, which collect royalties from schools, venues and other organisations that use copyrighted works, are up in arms. A collection of these organisations and foreign media companies such as Sony Pictures, calling itself the Copyright Alliance, has claimed that fair use means:
• "No royalties will be paid to musicians if their music is used for educational purposes, so if [someone] uses [a song] in a school or an educational documentary, the artist who wrote the music will not get any royalties";
• "Academic writers of prescribed university books [will be put] in the position where a university buys one copy of the book and makes free copies for its 2,000 students, without compensating the author at all".
These are serious claims, indeed. But they are completely untrue. It is time for a little light to go with the heat in this debate.
The term "fair use" comes from a provision of the copyright act in the US that was passed in the 1970s, around the same time that SA created an exception for "fair dealing". Both "fair use" and "fair dealing" are general exceptions to copyright. They state that a person can use (or deal with) a copyrighted work as long as that use is fair to the rights holder.
The test for fairness in both fair use and fair dealing rights is whether the use substitutes for the work in the market. Does the use cause market harm to the rights owner? If it does, such as by making copies of a book or song instead of buying it, the use cannot be fair. But other uses, such as quoting a book or song to make a point, do not harm the market for the work and contribute to the free expression of others. Thus US law and current South African law protect such fair use of copyrighted works. No one needs permission to quote another.
The innovation of the US fair use clause is that it is open to application to any purpose. The South African fair dealing clause only applies to a narrow list of purposes including research or private study, personal or private use, criticism or review, and reporting current events.
The value of having a general exception that is open to any fair use of a work is that it is future proof. New uses of works that do not harm the right holder are invented all the time. The video cassette recorder was a new and unforeseen use when it was invented. The US fair use clause allowed it to be introduced to the public before any legislative clarification.
Today, we have internet search engines, machine learning, artificial intelligence and data mining – all of which use machines to "read" millions of works to expand our knowledge and improve our lives. But when machines read, they also copy. Requiring a licence for each one of these copies, which do not substitute for any work in the market and do not communicate the work to anyone, would shut down the technology. Indeed, companies such as Google explain that they locate their most advanced engineering projects in fair use countries for this reason alone.
Therein lies a main benefit of fair use. It enables technological innovation by permitting new fair uses of works that were nor foreseen by the legislature. This attracts and enables technological investment without harming rights holders.
At American University, we have been studying the benefits of fair use. We tracked the economic outcomes in more open and less open copyright systems over 40 years. What we found was that high technology industries do much better in countries with fair use or other open copyright exceptions that can enable their work – and that entertainment and publishing industries do better too.
Would fair use give every "educational documentary" a right to a free soundtrack? Absolutely not.
Fair use is not carte blanche to use other people’s work without paying. Fair use only applies to uses that are fair. The test for whether a use is fair asks whether the use would deprive the author of revenue by substituting for the work in the market.
For example, if someone makes a copy of an album and puts it online without permission, people could listen to the whole album without paying the musician. Such "substitutional" uses are not fair uses.
For this reason, the idea that fair use would allow a school to make thousands of copies of a book for its students is absurd. Fair use does not provide this right, because the act would clearly be substitutional. Could a teacher play part of a song in the classroom to illustrate a point, without paying the rights owner? Absolutely. Use of a work to illustrate a point to students — rather than to entertain — is a clear fair use in the US. And such a use is permitted under current SA law.
Would fair use give every "educational documentary" a right to a free soundtrack? Absolutely not. Soundtracks are a core market use of music and the tracks must be licensed in fair use and non-fair use countries.
An open fair use clause could not affect in any way the licensing revenues musicians and others receive for uses such as broadcasting, audiovisual synchronisation, or the playing of recordings in bars and restaurants — all of which are substitutional uses in the sense just described.
This means, among other things, that existing collective licensing arrangements would be unaffected by the introduction of fair use legislation. Likewise, photographers’ revenues from sales for promotion and advertising use or illustrations on websites would be undiminished.
Some claim fair use will cause more copyright litigation or that litigation costs will rise under fair use. There is no evidence for this assertion. Many countries have added fair use laws in recent years, including Israel, South Korea, Singapore, Malaysia and others. We have not seen litigation spikes in those countries.
Nor is fair use the source of much litigation in the US. Copyright litigation makes up just 0.75% of federal court cases in the US, and fair use rulings are even more rare, accounting for just 0.004% of US district court dockets. Want more evidence? Try to find a major law firm in the US with a copyright litigation practice area, much less a fair use litigation practice area.
For the same reasons, fair use is not a giveaway to big corporations such as YouTube. Fair use doesn’t let corporations, or anyone else, avoid paying a licence fee to play, perform or copy a work in a way that substitutes for the market of the copyright owner. Indeed, YouTube uses sophisticated content identification systems to detect and licence all copyrighted music and other works on its platform. Fair use would not change that.
As explained above, the main aspect of current law that would change under fair use is to open the purposes to which the current fair dealing standard can apply. This would liberate high technology research and invention not authorised by the law. The main situations in which a song or book can be used by the media, by a school or other user would not change. Indeed, most of these uses are already covered by SA’s quotation or fair dealing rights.
• Flynn is a researcher and lecturer at American University Washington College of Law in Washington DC, and co-ordinator of the Global Expert Network on Copyright User Rights, a network of copyright academics from more than 30 countries.