Fair UseWeek: Transforming Reality to Suit a Narrative?
by Neil Turkewitz
It’s that time of year again when one section of the copyright law gets its own week. Maybe next year we can have “Reproduction Rights Week,” or perhaps “Right to Prepare Derivative Works Week.” That would shift things up a bit. Perhaps create a little more balance in public-facing discussions of copyright. But I digress, because for better or worse, here we find ourselves again in celebrating Fair Use Week.
Now don’t get me wrong. As I have previously written, fair use is an important part of our copyright system and I fully embrace it — although not all judicial interpretations therefore — see for example Cariou v. Prince. But together with the idea/expression dichotomy, scènes à faire and other limitations to rights, fair use — properly construed, advances the purposes of the Copyright Law to provide incentives for the creation and distribution of original works. And of course, as observed by the Supreme Court in Eldred v. Ashcroft, fair use doctrine provides a “built-in free speech safeguard.”
My problem with “Fair Use Week” is that it separates fair use from the rest of the ecosystem in which it operates. Fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” is irrelevant in the absence of a desire to access. Celebration of fair use is actually a celebration of the benefits of fueling original creative expression, for if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value. If we can succeed in allowing creators to earn a living from their craft, we will have greatly advanced the public interest, and produced a wealth of accessible cultural materials that enrich present and future generations. Now that would be something to celebrate.
Far too much of the discussion of fair use strays from its practical and laudable purposes and devolves into a campaign based on imaginary rights and revolving around faux-warcraft against the world of copyright. Fair use campaigners like to suggest that they are locked in a battle with the “copyright police” as if their holy mission were to take down “the Man” — while ignoring that the “Man” is actually an individual creator, possibly a woman and increasingly (and fortunately), a person of color.
The framing of much of the Fair Use campaign also tends to ignore the changed circumstances in which we operate, and specifically the way that fair use effects, or upsets, the balance between respective parties. The traditional notion of fair use as an escape valve or form of redistributive justice limiting the power of those in a dominant position needs to be completely reimagined in the current environment.
Fair use is generally portrayed as a lever against monopolies, exercised by those without market power against those who do. But as noted by Ben Sobel in his 2017 article “Artificial Intelligence’s Fair Use Crisis,” “Today’s digital economy upends this narrative. … This pivot in market dynamics should prompt a corresponding shift in attitudes towards fair use. The doctrine no longer redistributes wealth from incumbents to the public; it shifts wealth in the other direction, from the public to powerful companies.”
Sobel writes:
“Fair use redistributes economic and expressive power. It curtails an otherwise outsize legal and economic entitlement so that “the public” can undertake certain socially beneficial activities…
The historical narrative of copyright and technology is one of powerful rightsholders and marginal users. Today’s tech business turns this structure on its head. Accordingly, scholars and jurists ought to recalibrate their intuitions about what fair use is and does. A progressive interpretation of copyright does not, in this circumstance, entail a broad construction of fair use. Indeed, upholding copyright’s redistributive roots may require a return to the market-based reasoning that, at the time, seemed to move against redistribution.”
This is a powerful and important insight. For far too long, conceptions of fair use have rested on an inchoate sense that the public gains from fair use, and loses when an author’s proprietary interests are protected. But of course this both fails to recognize the public’s primary interest in fueling the creation of original works of authorship, and assumes a linkage between the public interest and fair use that’s far too simplistic. It also fails to fully reflect fair use in the wild, and how it is employed by huge corporations to justify appropriation for the purposes of competition (e.g. Google v. Oracle), or the “transformation” and re-purposing of works originally created by artists of less renown by their more famous counterparts (e.g. Cariou v. Prince).
Recent events in South Africa help to illustrate a dynamic of fair use that the celebrants-in-chief of Fair Use Week would rather you not consider — how fair use can effect a wealth transfer from developing countries rich in cultural traditions and production to western technology companies.
While derided by fair use advocates, South African President Ramaphosa referred draft legislation introducing fair use into South Africa’s copyright law, back to Parliament due to concerns about constitutionality and treaty compliance. South African authors, musicians, songwriters and others in the creative community had highlighted the outsized role of American tech companies, academics and organizations in pressing for adoption of the law as part of their global policy agenda to expand fair use, without regard to the particulars of the South African experience, and without any consideration for the impact on the South African creative community. This was clearly exposed in an article in South Africa’s Daily Maverick, entitled: “The Copyright Bill is fundamentally flawed and strips creatives of their rights.”
“The core issue with the Copyright Amendment Bill is that it will amount to the expropriation of intellectual property (IP) without compensation. This will deal a hammer blow to the production of local content in our book stores, on our television screens and in our educational institutions.
Although the bill was originally intended to benefit South African creatives, it will instead cut off their income streams. The losers will be local artists, writers and musicians. The winners will be the large, global tech companies who will gain free access to South African content thanks to the bill’s extensive exceptions to copyright, especially under an expansive set of principles allowing free use of copyright materials called “fair use”.
Benjamin Trisk, Chairman of Trustees: Nal’ibali literacy organization noted:
“In its present form the Copyright Amendment Bill endangers authors and their output at a critical and formative time in the emergence of a new literary voice in South Africa. That voice has become more strident and more important as countless South Africans of colour begin to weave their personal narratives into fiction and memoir. Equally importantly are the many works of non-fiction that are emerging from a three-century old racist past to shed light on a history of South Africa that, until recently, was recounted only by the victors.”
This seems as good a place as any to end this essay. If nothing else, I hope that I have convinced at least some readers to think more carefully about the assumption that fair use necessarily advances the public interest. Sometimes it does, and sometimes it doesn’t. But we shouldn’t proceed on the basis of uninterrogated assumptions and oversimplified narratives. Fair use is deliciously and maddeningly complex. Let’s not take shortcuts that dull its richness.
