Keeping Fair Use “Fair”
By Frank Cullen
Most of us like to think of ourselves as fair-minded. And as a nation, we honor the idea of fair-play and instill the ideal of fairness in our children from an early age. So when someone uses the term “fair use” as the basis for taking a copyrighted work without permission or compensation, you would expect that fair-minded people would think it is hardly “fair” for someone to get a free ride on the labors of another.
Our founding fathers understood that intellectual property (IP) was deserving of protection because it not only protected the rights of the creators but also provided an incentive for innovation and meeting the needs of consumers. History has proven them right, as the wonders of our technological inventions and artistic creations are the envy of the world and a pillar of our economic strength.
The concept of “fair use” is sometimes misunderstood to imply “free use” in any situation in which the result is thought to be socially beneficial in some general sense; which may sound appealing to some but is ultimately damaging to consumers and our economy. In the current marketplace, especially online, consumers have access to an ever-increasing array of products, including almost every type of copyrighted material – music, videos, books, apps, the list is endless. Not only is a huge amount of material available, it is accessible through convenient and affordable services and platforms on a dizzying spectrum of devices that would not be possible without the collaboration of copyright holders and innovative tech companies. Using sophisticated technologies, the consumer can read, watch or listen to digital quality works in the comfort of one’s home or on the run (or quite literally, on a run).
This was not always the case. In relation to copyright policy, the principle of fair use has developed and been defined based on the precedent that has come up around it. In years past, yet not so long ago, getting permission to use a copyrighted work or even determining how to pay for such use could be time-consuming and expensive. Such “transactions costs” could stand in the way of licensing uses of copyrighted works which even the copyright owner might otherwise agree to. However, that is no longer true. Our courts have ruled that:
“…[I]t is sensible that a particular unauthorized use should be considered ‘more fair’ when there is no ready market or means to pay for the use, while such an unauthorized use should be considered ‘less fair’ when there is a ready market or means to pay for the use.”
Anyone who has bought a book on a Nook, purchased music through iTunes, watched a show on Hulu, or streamed a movie through Netflix (just to name a few) knows that there is a huge and ready market for these products, and that these products can be accessed easily and at a reasonable cost.
Consumers have created the demand for copyrighted works and the market has responded with new products and services that consumers want and need. Consumer experiences have been vastly improved due to the response of the marketplace, and the economic benefits are enormous. In addition, copyright industries contribute significantly to our national economy, generate trade revenue and create well-paying jobs. If “fair use” becomes “free use,” the economic benefits and consumer experience will be significantly diminished. Now, does that sound “fair” to you?