Focus on Fair Use: Debunking Copyright’s Snake Oil Salesmen
By Keith Kupferschmid, 1 December 2017
I was on the phone last week talking to someone about a potential partnership between our two organizations that could benefit individual creators. We began by exchanging information about our respective organizations. He spoke first, and I followed. After explaining that the mission of the Copyright Alliance is to promote the value of copyright and to protect creators’ interests, the person on the other end of the phone said something that caught me by surprise.
He said that he didn’t think his organization could partner with us because we support copyright law and, therefore, must not support fair use.
Maybe this statement shouldn’t have surprised me, having worked at the Copyright Alliance for more than two years. But it still astounds me that there are so many people who consider copyright and fair use as two opposite notions.
Creator Rights and Public Use: Opposing Force, or Applied Force?
I think a lot of the misunderstanding about copyright is due to the persistent and intentionally deceptive messaging by certain groups – let’s call them copyright snake oil salesmen – that attempt to denigrate copyright by pitting creators’ interests against the public interest.
In doing so, they intentionally ignore the purpose of copyright law (to incentivise creation and dissemination of creative works to the public) and the internal balancing mechanisms in the copyright law (like exclusive rights and defenses, such as fair use). This approach is tremendously damaging to the goals of copyright, our creative future, and the economic and cultural well-being of our nation.
Setting creators’ copyright interests on one scale and the public’s interests on the other is both one-dimensional and detrimental to the overall goals of copyright – because its underlying premise is that creators’ interests are distinct from the public’s interests, and that one can only be furthered at the expense of the other. Nothing could be further from the truth.
In fact, creators’ interests and the public’s interests are interrelated and mutually reinforcing. They are not opposed to one another. After all, doesn’t the author need the reader? Don’t the performer and the audience both need each other?
Giving creators a marketable right in the tangible expression they produce is the best way to advance the interests of both the creator and the public, and it’s also the foundation that underlies copyright. By keeping in mind the intertwined nature of the private right and the public gain, we can better reach a more balanced and healthy approach to copyright.
Establishing marketable property rights balances between two of the primary goals of copyright: rewarding creators’ labor and encouraging the dissemination of creative and informational works to the public. Importantly, copyright law also balances the interests of creators in recouping the value of their work while preserving the ability for follow-on and downstream creators (and the public) to build on existing works through inspiration, homage, criticism, and commentary.
Everyone Benefits from Fair Use
One way the Copyright Act does this is through the fair use doctrine. Some of the strongest supporters of fair use are the very creators who rely on copyright to earn a living and who are members of the Copyright Alliance. Creators who rely on copyright themselves very often make fair uses of works in the creation of their own, new works. Journalists, filmmakers, and authors, just to name a few, routinely rely on fair use to create new copyrighted works.
So, when we at the Copyright Alliance talk about the value of copyright, we are talking about all aspects of copyright and not just certain parts or certain people. We don’t separate fair use and treat it as the redheaded stepchild of copyright. We embrace fair use as a necessary and important part of copyright, just as we embrace other aspects of the law.
Our copyright law has helped make this country the world leader in innovation and creativity. A robust, well-functioning and up-to-date copyright law is essential to everyone – creators, owners, users, the public, and many others.
#UniteForCopyright
Let’s not fall into the trap set by these snake oil salesmen who seek to divide us into those that support creators’ rights and those that support fair use. Instead, let’s unite around all of copyright law and support copyright and creativity. Let’s #UniteForCopyright.
Keith Kupferschmid is the CEO of the Copyright Alliance.
Author: Keith Kupferschmid
Before joining the Copyright Alliance, Keith served as the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). During his 16 years at SIIA, he represented and advised SIIA member software and content companies on intellectual property (IP) policy, legal and enforcement matters. He has testified before Congress and various federal and state government agencies on IP issues and also supervised SIIA’s Anti-Piracy Division, including working with federal and state government officials on civil and criminal piracy cases. Prior to joining SIIA, Keith worked as an IP attorney at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, IP attorney-advisor at the U.S. Patent and Trademark Office (PTO), Director of Intellectual Property at the United States Trade Representative, and Policy Planning Advisor at the U.S. Copyright Office.
