Fair Use, Fairness and the Public Interest
Neil Turkewitz

Fair Use, Fairness and the Public Interest (part ll)

Dear Marcus and Lizard:

Thanks for reading and commenting. I appreciate that, even though you think I have misstated the equities or history. In the hope that you still have bandwidth for further reading on the important subjects that we are discussing, I have attached some materials below that you may find interesting and helpful. And Lizard, my issue is not with balance as such. Of course, copyright legislation (as with all legislation) should be balanced. My only point is that in achieving balance, we should properly identify the factors which we are seeking to balance. An analysis of copyright that presumes that the public interest and copyright are opposing forces will necessarily produce outcomes that poorly serve the interests of societies.

Marcus, on the history and meaning of Article 1, clause 8, I would first direct you to the most obvious statement from the original source, James Madison, who wrote: “The public good coincides…with the claims of individuals.”

This is further explored in the following article by the ever-thoughtful Terry Hart: http://www.copyhype.com/2016/06/balance-in-copyright/

And for a deeper dive in Constitutional history, see: http://cfif.org/v/images/pdfs/constitutional-and-historical-foundations-of-copyright-protection.pdf

And finally, see this from Bill Patry. As you may know, Patry has had a long and distinguished career in the public and private sector, including stints at the House Judiciary Committee and the Copyright Office, and is the author of a treatise on U.S. copyright law entitled Patry on Copyright. Patry is currently Senior Copyright Counsel at Google.

[quoting Madison in the Federalist Papers] The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.

At least four important principles may be gleaned from this short statement. First, copyright was a right recognized as common law. Second, the effectiveness of granting exclusive rights to authors as an incentive to creation was well acknowledged. Third, copyright must be federal in order to achieve, in practice, effectiveness of the grant. Fourth, the public interest fully coincides with the interest of authors having exclusive rights in their works. The source of this harmony between public and private interests is not difficult to discern once we strip away our present-day, consumer-oriented perspective: in place of government control, the Founding Fathers believed private property, including intellectual property, was the best way to ensure the triumph of democracy over the tyranny of the aristocracy. As former Register of Copyrights Abraham Kaminstein observed:

The basic purpose of copyright is the public interest, to make sure that the wellsprings of creation do not dry up through lack of incentive, and to provide an alternative to the evils of an authorship dependent upon private or public patronage. As the founders of this country were wise enough to see, the most important elements of any civilization include its inde’pendent creators — its authors, composers and artists — who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.