I agree 100% that we need better guidance on how to apply the fair use test. From what i've read, it appears that depending on the type of use at issue, certain factors will weigh into the balancing more than others, and in other types of uses, the other factors weigh more heavily. Fair use cases are very unpredictable because we don't know how the court is going to come down. So many reversals and then re-reversals occur in fair use cases on their way up to the USSC.

With regard to the campbell v. acuff decision, that case said the fourth factor wasn't important here because the issue was parody/criticism. The purpose of using the underlying work was a transformative purpose. That case held that because it was a transformative use, the commercial aspect of it weighed less in the balance. There is no "protectable derivative market for criticism" so there was not much regarding the 4th factor in that case. However, in other cases, the 4th factor does carry extreme weight and this is often the case because of the fact that the derivative market is extremely broad.

My discussion about the 106 derivative work right is certainly a 106 problem but the point was that by fixing 106, it will help to fix fair use and the balancing test. So it is a 106 problem, but it necessarily implicates the fair use analysis.

I will look into patent stuff. Ive never studied patents and know almost nothing about it (except from what i've read in your first paper on Bielski). Thank you for your thoughts

-- AustinKlar - 09 Dec 2011

Austin,

Great idea on the article and you delved into the doctrine well. However, fair use is much more nuanced and complicated than what you have portrayed here. Several comments/suggestions: 1) Check the law on the fourth factor, esp. after the Supreme Court's Campbell v. Acuff-Rose decision. I remember the Second Circuit saying that the fourth factor is no longer as important as you are portraying it as. 2) I agree - we need to limit the scope of derivative works rights, but that's a 106 problem separate from fair use. What about limiting derivative rights based on categories of works, e.g. musical works as opposed to pictorial or literary works? Also, explore the possibility of adopting something from the blocking patents system in patent law. 3) The burden shift sounds good in theory but difficult procedurally and unlikely to be accepted. The DMCA takedown provisions has something similar but I don't see how placing the burden on plaintiffs, which I agree would limit copyright lawsuits, would work or not have the effect of unleashing too much unauthorized copying. Finally, the First Amendment protections are built into the copyright clause and you won't get much sympathy from the Supreme Court on separate First Amendment considerations.

What we do need is better guidance on how to apply the fair use test. Having four factors, each with its intricate nuances, and no sense of how exactly to balance them and approach it analytically, is the problem with fair use. It has troubled individuals and businesses, and courts when they need to decide them. Some guidance from the Supreme Court or even Congress would be helpful. Ultimately, the best solution I think would be for Congress to do a Copyright overhaul like they did with patents, but more comprehensively and in line with what copyright and fair use means in the 21st century.

-- ThomasHou - 05 Dec 2011

Austin,

Great idea on the article and you delved into the doctrine well. However, fair use is much more nuanced and complicated than what you have portrayed here. Several comments/suggestions: 1) Check the law on the fourth factor, esp. after the Supreme Court's Campbell v. Acuff-Rose decision. I remember the Second Circuit saying that the fourth factor is no longer as important as you are portraying it as. 2) I agree - we need to limit the scope of derivative works rights, but that's a 106 problem separate from fair use. What about limiting derivative rights based on categories of works, e.g. musical works as opposed to pictorial or literary works? Also, explore the possibility of adopting something from the blocking patents system in patent law. 3) The burden shift sounds good in theory but difficult procedurally and unlikely to be accepted. The DMCA takedown provisions has something similar but I don't see how placing the burden on plaintiffs, which I agree would limit copyright lawsuits, would work or not have the effect of unleashing too much unauthorized copying. Finally, the First Amendment protections are built into the copyright clause and you won't get much sympathy from the Supreme Court on separate First Amendment considerations.

What we do need is better guidance on how to apply the fair use test. Having four factors, each with its intricate nuances, and no sense of how exactly to balance them and approach it analytically, is the problem with fair use. It has troubled individuals and businesses, and courts when they need to decide them. Some guidance from the Supreme Court or even Congress would be helpful. Ultimately, the best solution I think would be for Congress to do a Copyright overhaul like they did with patents, but more comprehensively and in line with what copyright and fair use means in the 21st century.

-- ThomasHou - 05 Dec 2011

INTRODUCTION

Pursuant to constitutional mandate, the purpose of copyright law is to “promote the Progress of Science and the useful Arts.” The author is only a mechanism by which to advance social benefit, i.e., to promote cultural progress. Securing remuneration for authors, therefore, is not an end goal of copyright law but rather a chosen means to promote progress of art and science. Thus, while copyright protection is quite broad, it is not absolute. The fair use defense enables secondary use of copyrighted works without the need to obtain permission from, or pay royalties to, the copyright owner of the originating work. Fair use largely "embodies First Amendment values" and balances the desire to protect copyrighted works from unfair exploitation with the goal of advancing social benefit. As the fair use defense currently operates, however, the doctrine often favors copyright protection at the expense of hindering free speech as well as retarding progression of useful art and science. Reinterpreting fair use’s four-factor test is necessary to bring fair use back into balance with the stated goals of copyright protection and the First Amendment.

NARROWING THE SCOPE OF THE FOURTH FACTOR

The Fair Use test takes into account “the effect of the [secondary] use upon the potential market for or value of the copyrighted work.” Under this factor, “a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create.” Under this factor, it matters not whether a creator intends to exploit a particular market for the copyrighted work; if it is a potential market, the copyright owner has a monopoly over that market and can deprive society of that valuable market. Therein lies one of the main problems. If creators have enough incentive to author original works despite not having intent to explore certain markets, it means that secondary users’ ability to explore those markets should not alter the creators’ incentive to create the original works. Thus, society would not be deprived of the original copyrighted work, and would have access to secondary works that society otherwise wouldn’t have access to, thereby progressing science and the useful arts. Moreover, since remuneration for creators is not the main goal of copyright law, access to valuable secondary works should be paramount to the originating author’s proprietary rights in secondary works, especially in cases where the author has made clear he has no intent to enter into the secondary market; the author’s anti-dissemination motives should give way to secondary creation of valuable works.

NARROWING THE SCOPE OF THE RIGHT TO CONTROL CREATION OF DERIVATIVE WORKS

One way around added protection that could be given in cases where the author expresses intent to not enter a secondary market is for the author to simply say he does, in fact, want to explore that market. Thus, in order to effectively balance the scope of the fourth factor, perhaps we must narrow the scope of secondary markets available for copyright owners’ exploitation under § 106. For example, if we apply narrowing constructions to the derivative work right, the potential market for the copyrighted work becomes much narrower, and makes it easier for the fourth factor to balance in favor of finding fair use. Reducing the scope of exclusive rights granted to copyright owners weakens the functional monopoly owners have over production and dissemination of socially valuable works and weakens the barriers to access, thereby promoting the progress of science and the useful arts. Further, narrowing the derivative work right granted to copyright owners could increase competition. If secondary users are less inhibited from entering into the derivative market, more works will be produced and those works will compete with each other for the market’s demand. The higher quality, more socially valuable works will capture such demand.

SHOULD THE FAIR USE DOCTRINE BE AN AFFIRMATIVE DEFENSE?

Another aspect of fair use tipping the balance in favor of copyright owners is the fact that fair use is an affirmative defense to infringement. Defendants bear the burden of proving that balancing the fair use factors favors finding Defendant’s infringement excused as fair use. While Plaintiffs bear the burden of proof to show actual infringement in the first place, the infringement analysis often does not account for social benefits of secondary works or free speech. The free speech elements involved with parodies and criticism, paradigmatic candidates for fair use protection, are not relevant until after establishing that such parodies and criticisms infringe copyright. Thus, once cases reach the fair use stage, there is a presumption that there are no elements that favor excusing infringement. The First Amendment states “Congress shall make no law . . . abridging the freedom of speech . . .” In order for the First Amendment to be superior to copyright law, it should be incumbent on plaintiffs to assert that copyright protection should operate to enjoin defendants’ uses, rather than defendants having to show that regardless of copyright protection, their uses should be excepted. A shift of this burden would make it more costly for plaintiffs to bring lawsuits and could deter plaintiffs from bringing lawsuits altogether, especially when the suit involves a derivative market which the plaintiff never intended to exploit in the first place, thereby decreasing costs of access to works and creation of secondary works, advancing the goals of copyright protection.

CONCLUSION

While these are not the only changes one could lobby for in bringing fair use into balance with copyright’s stated goals and First Amendment protection, these changes would fundamentally alter the way the test applies in all fair use cases and could bring about significant positive change to copyright law. Such changes would allow for cheaper access to copyrighted works, a decrease of barriers of entry into secondary markets, and would foster creation of socially valuable works, thereby promoting progress of science and the useful arts, without significantly inhibiting or discouraging creation of original works of authorship.

-- AustinKlar - 26 Nov 2011

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