Fair Use Week 2016: Day Five With Guest Expert Matthew Rimmer




Malcolm Turnbull, Copyright Law Reform, And The Innovation Agenda

by Matthew Rimmer


Australian Prime Minister the Hon. Malcolm Turnbull

2015 has been another tumultuous year in Australian Politics. There was a dramatic change in the leadership of the ruling conservative coalition between the Liberal Party of Australia and the National Party of Australia. Tony Abbott was replaced as Prime Minister of Australia by Malcolm Turnbull. This change of leadership has been consequential for Australian copyright politics. The transition from Tony Abbott to Malcolm Turnbull has resulted in a re-positioning of the Federal Government’s approach to copyright law and innovation policy.

Under the aggressive leadership of Tony Abbott, the Federal Government took a hard line on copyright enforcement. The film studio Village Roadshow made significant political donations to both the Liberal Party of Australia and the opposition, the Australian Labor Party. The Attorney-General George Brandis pushed through the passage of the Copyright Amendment (Online Infringement) Act 2015 (Cth), with the rather docile assistance of the Shadow Attorney-General Mark Dreyfus. The Internet site-blocking legislation was dubbed the worst piece of legislation by the Electronic Frontier Foundation in 2015. Village Roadshow has already launched a copyright action over the Solar Movie regime in the Federal Court of Australia to test the new regime. Moreover, the Attorney-General George Brandis pushed for a copyright code, governing the relationship between copyright owners, intermediaries, and Internet users. He scorned the recommendations of the Australian Law Reform Commission to introduce into Australia law a broad, open-ended defence of fair use like the United States. Furthermore, the Abbott Government was an enthusiastic cheerleader for the passage of the Trans-Pacific Partnership, with its arsenal of intellectual property enforcement measures.

In contrast to Tony Abbott, who was hostile to science and technology, Australia’s New urbane Prime Minister Malcolm Turnbull has promoted an innovation agenda, and placed emphasis upon entrepreneurship, economic agility, and digital disruption. He has had significant exposure to intellectual property law and policy, as is well documented by Paddy Manning’s new biography, Born to Rule. Turnbull made his name in the ‘Spycatcher’ case, taking on and defeating the United Kingdom Government. As chairman of OzEmail, he was no doubt sensitized to copyright issues. The copyright collecting society APRA threatened an action for copyright infringement against the internet service provider, which was later settled. Turnbull took carriage of reforms of film copyright during the Howard Government. He seemed uncomfortable with a number of policies of the Abbott Government affecting the Internet. Peter Hartcher reported that Malcolm Turnbull battled with Tony Abbott over the proposal for copyright fines for Australian internet users. Turnbull was of the view that Abbott’s heavy-handed copyright proposals were ‘politically explosive.’ Interestingly, Turnbull has also been an outspoken critic of gene patents – a stance that has been reinforced by the recent High Court of Australia ruling against Myriad Genetics Inc.

Malcolm Turnbull has shifted the responsibility for copyright law away from the Attorney-General George Brandis to the new Minister for Communications and the Arts, Senator Mitch Fifield. Just before Christmas, in December 2015, the Ministry for Communications and the Arts released an exposure bill, the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). The proposed legislation has several key components.

  1. The Marrakesh Treaty, Copyright Law and Disability Rights

Maryanne Diamond, ‘An Information Revolution for the Blind’

A number of prominent Australians pushed for the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Graeme Inness, Maryanne Diamond, and Ron McCallum provided eloquent testimony for the need for copyright law reform to address the problem of disability discrimination. The Director-General of the World Intellectual Property Organization Francis Gurry helped shepherd the agreement through the negotiations. The Australian Minister for Foreign Affairs, the Hon. Julie Bishop, has been a prominent supporter of the ratification of the agreement.

Australia has been a proud supporter of the World Intellectual Property Organization Marrakesh Treaty on Copyright Law and Disability Rights. Australia ratified the agreement in December 2015. The Minister for Foreign Affairs, the Hon. Julie Bishop, emphasized : ‘Australians with vision impairment will have greater access to books and other published materials in accessible formats such as large print, braille or audio following Australia’s ratification of the Marrakesh Treaty’ She stressed that ‘the Treaty is a significant international agreement that will help 285 million people with vision impairment worldwide to access these materials.’ Bishop commented ‘Ratifying this treaty is an important part of the Government’s commitment to supporting Australians with disability. Accessible format materials are essential to ensuring all Australians can engage fully in school, work and our communities.’ She also observed: ‘By improving access to large print, braille and audio materials in the Indo-Pacific, the Marrakesh Treaty will also support economic and social development in our region.’

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to provide access to copyright works by persons with a disability. Section 113E (1) of the bill provides that ‘a fair dealing with copyright material does not infringe copyright in the material if the dealing is for the purpose of one or more persons with a disability having access to copyright material.’ Section 113E (2) considers a number of matters to be taken into account in an assessment of fair dealing. Section 113F deals with the use of copyright material by institutions assisting persons with a disability.

These amendments are certainly a significant improvement over the rather narrow, limited, and defective provisions currently found in Australia’s copyright laws. In its inquiry into Copyright and the Digital Economy, the Australian Law Reform Commission lamented

The digital era creates the potential for vastly improved access to copyright material for people with disability. However current legislative arrangements mean that this potential is not fully realised. The Copyright Act provides for a statutory licence for institutions assisting people with disability. The licence allows these institutions to make accessible versions of copyright works, but its scope of the licence is limited, the administrative requirements are onerous, and it has not facilitated the establishment of an online repository for people with print disability. The exceptions available for individuals—fair dealing, format shifting and the s 200AB ‘special case’ exception—are also limited in their scope. The widespread use of technological protection measures (TPMs) is creating significant barriers to access for people with disability.

The Australian Law Reform Commission recommended that access for people with disability should be addressed by a broad defence of fair use. The alternative proposal of the Australian Law Reform Commission was the introduction of a defence of fair dealing for the purpose of access for people with a disability. This fall-back option has been the one adopted and embraced by the Federal Government.


  1. Cultural Preservation

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) also proposes reforms in respect of copyright exceptions for public libraries, parliamentary libraries, and public archives.

Section 113H of the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) provides that an authorised officer of a library or an archives does not infringe copyright by using material for the purpose of preserving the collection comprising the library or archives. This measure is subject to further procedural qualifications.

This reform is designed to address the rather clumsy way that Australian copyright law deals with cultural preservation. The moral rights regime has a clearcut exception for preservation. However, the system of economic rights has not dealt with the issue very clearly thus far.

There remain larger issues in respect of reforming copyright law for libraries, archives, galleries, museums, and other cultural institutions. In his book, BiblioTech: Why Libraries Matter More Than Ever in the Age of Google, John Palfrey reflects that ‘the law of copyright has become a hindrance when it comes to building strong libraries in a digital era.’ He observes that ‘librarians have been at the forefront of efforts to update the law to support their good works into the future.’ Palfrey concludes: ‘Without changes to current law and policy, librarians will have a terribly hard time accomplishing their public-spirited mission in support of people living in a democracy.’


  1. Cooking for Copyright


Cooking for Copyright at the QUT Library

In Australian, there has been much concern about the indefinite duration of copyright protection for unpublished works.

In response, Australian librarians held a Cooking for Copyright protest in 2015. Baking Bad, the librarians shared recipes of unpublished works on social media, and engaged in cooking festivals with the illicit recipes. The event was a runaway success, with massive media coverage of the issue, and wide popular support.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) seeks to address the issue in respect of term of protection. The Department of Communications and the Arts emphasize: ‘The proposed amendments seek to harmonise the copyright term for published and unpublished works by creating a new general protection period of life plus 70 years that does not differentiate between published and unpublished works.’ The legislation proposes that the general term of protection would apply to works made before 1st January 2018 that remain unpublished at that date.

The amendments also propose to deal with the situation of unknown authors, and Crown copyright.


  1. Safe Harbours

Since the passage of the Copyright Amendment (Digital Agenda) Act 2000 (Cth), Australia’s ‘safe habour’ regime has been limited to traditional service providers, such as telecommunications networks and internet service providers.

For many years, Google and other information technology companies have been lobbying successive Federal Governments for a more expansive definition of service providers. Such companies have been fearful of being exposed to copyright infringement lawsuits in Australia, without the protection of a ‘safe harbour’ regime. Copyright owners, though, have fought against an expansion of the ‘safe harbour’ regime.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) proposes to expand the current ‘safe harbour’ provisions in the Australian copyright legislation to include a broader range of entities.

  1. Parallel Importation

The Prime Minister Malcolm Turnbull and the Treasurer Scott Morrison have mooted the repeal of parallel importation restrictions in respect of books.

The parallel importation restrictions have been widely criticised by the High Court of Australia, the Australian Competition and Consumer Commission, the Productivity Commission, and Australian parliamentary investigations into IT Pricing.

There has been great concern that publishers have used parallel importation restrictions to keep book prices high in Australia, and to restrict foreign competition.

Rather shrilly, publishers and authors have accused the Turnbull Government of ‘ideological vandalism’.

However, looking at the text of the provisions, the parallel importation restrictions do not serve any direct purpose of protecting local cultural content.

Indeed, under international intellectual property agreements, the Australian Government would not be able to discriminate in favour of local authors and publishers, without breaching the basic principle of ‘national treatment’.

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not contain, though, any legislative measures to repeal the parallel importation restrictions in respect of books.


  1. Fair Use

The Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth) does not address the larger question of whether Australia should have a defence of fair use like the United States.

The Turnbull Government should go further and adopt a defence of fair use, as recommended by the Australian Law Reform Commission. The Australian Law Reform Commission observed:

Fair use also facilitates the public interest in accessing material, encouraging new productive uses, and stimulating competition and innovation. Fair use can be applied to a greater range of new technologies and uses than Australia’s existing exceptions. A technology-neutral open standard such as fair use has the agility to respond to future and unanticipated technologies and business and consumer practices. With fair use, businesses and consumers will develop an understanding of what sort of uses are fair and therefore permissible, and will not need to wait for the legislature to determine the appropriate scope of copyright exceptions.

A defence of fair use would be an agile, innovative, and disruptive policy option, which would help reinforce the Turnbull Government’s Innovation Agenda.

Professor Kathy Bowrey from the University of New South Wales noted that the policy papers of the Innovation Agenda did not address copyright law. She noted that ‘copyright rules and regulations sit behind all the agendas found in the innovation statement.’ Bowrey insisted: ‘If the “ideas boom” is to move from mediocre slogan to stimulate real “leaps” and progress so that the “brightest” can shine, there is a need for more than a redistribution of public funds to starving public institutions.’ She maintained: ‘Copyright law reform needs to be taken seriously as a political concern, not left as a plaything shunted from inquiry to inquiry, while other games are carried on behind the scenes.’

The failure to address fair use would leave Australian innovators, entrepreneurs, and digital disruptors at a significant disadvantage. Start-ups in Silicon Valley, Boston, and Brooklyn have been able to thrive, with the help of the protection afforded by the United States defence of fair use. By contrast, Australian innovators would be exposed to the threat of actions for copyright infringement, given the narrow and limited operation of the defence of fair dealing.

The problem would be further exacerbated by the possible passage of the Trans-Pacific Partnership. The Trans-Pacific Partnership would provide for stronger, longer copyright protection throughout the Pacific Rim, and empower incumbent copyright industries, rather than start-ups and digital disruptors. As Maira Sutton points out, the Trans-Pacific Partnership poses certain threats and challenges to copyright defences and exceptions – like the defence of fair use.


It is an exciting time to be a copyright lawyer in Australia. The new Prime Minister Malcolm Turnbull has shifted the Conservative Coalition back towards a more centrist position in respect of Australian copyright politics. He has emphasized that copyright law should not only protect the private interests of copyright owners, but it should also promote innovation, competition, and the larger public interest. There have been a number of modest but meaningful copyright law reforms mooted in the new Copyright Amendment (Disability Access and Other Measures) Bill 2016 (Cth). Such measures address longstanding problems in respect of copyright law and disability rights; cultural preservation; the copyright duration of unpublished; and safe harbours. The proposals are still provisional and contingent. It remains to be seen whether this bill will pass before the next Australian election. Turnbull and his Treasurer Scott Morrison have also considered the repeal of anti-competitive parallel importation restrictions. There is a need for the new Turnbull Government to address the Australian Law Reform Commission’s outstanding proposals in respect of copyright exceptions and the digital economy. A defence of fair use would be of particular help and assistance for Australia’s innovators, entrepreneurs, and digital disruptors. The future balance and equilibrium of Australia’s copyright laws will also be affected by the potential passage of the Trans-Pacific Partnership, with its expansive Intellectual Property Chapter.

rimmer2Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Law in the Queensland University of Technology (QUT). He is a leader of the QUT Intellectual Property and Innovation Law research program, and a member of the QUT Digital Media Research Centre (QUT DMRC), the QUT Australian Centre for Health Law Research (QUT ACHLR), and the QUT International Law and Global Governance Research Program (QUT IL GG). Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, and Indigenous Intellectual Property. He is currently working on research on intellectual property, the creative industries, and 3D printing; intellectual property and public health; and intellectual property and trade, looking at the Trans-Pacific Partnership, the Trans-Atlantic Trade and Investment Partnership, and the Trade in Services Agreement. His work is archived at SSRN Abstracts and Bepress Selected Works.




Fair Use Week 2016: Day Four Interview With #WTFU Founders


In a video posted last week week, famous YouTube sensation The Nostalgia Critic laid out the amazing case against the “big media” who are using YouTube to bully independent creators, regardless of their right to fair use. He titled the beautifully articulated argument “Where’s the Fair Use?” and created the now famous hashtag #WTFU.  His argument brings to light many of the strange, and borderline abusive, devices used to take down videos that are clearly within the realms of fair use.

In honor of Fair Use Week, we present an interview with the team behind #WTFU:

Kyle K. Courtney (@KyleKCourtney): Before we get into the #WTFU controversy, please tell us a little bit about your work, and how fair use is a critical aspect of that work. [Channel Awesome]: We do a variety of shows that hinge on pop culture, but our most popular show is the Nostalgia Critic, a show that we have been doing for over eight years. The show revolves around reviewing movies, and with reviewing movies we show clips. The clips shown are either directly talked about as a voiceover during the clip’s presentation or after the clip has been shown. The discussion of the clips can direct criticism or commentary and in our newer videos these clips lead to a parody sketch. Fair use states that clips from movies and television can be used under the basis of commentary, criticism, education, and parody.
WTFUYour #WTFU video has gone viral among many different communities beyond your typical YouTube movie fanbase, including (from our research) lawyers, librarians, think tanks, IP policy makers, artists, documentarian, and more! (It has had over 1 million views, 100 thousand “likes,” and 15 thousand comments). What was the moment, or “the straw that broke the camel’s back” that caused you to make this video? This has been something that we have dealt with for most of our existence. We originally had to leave YouTube back in 2008 due to the constant copyright claims on our 5 Second Movies and early Nostalgia Critic episodes. Back then you didn’t have the ability to fight it, and after three claims your channel was gone. We started our own website (thatguywiththeglasses.com, now channelawesome.com) and used blip.tv to host our videos. We started bringing our content back to YouTube with the help of blip.tv in early 2013 on the League of Super Critics channel, and then we created our own channel in July of 2014. (achannelthatsawesome) We finally bit the bullet and started uploading our new Nostalgia Critic episodes in May of 2015 and started seeing what to expect on YouTube. Claims from people stealing public domain content and saying they owned it, false companies claiming content, and claims on dozens and dozens of Nostalgia Critic reviews. The videos that we recently made on the subject were something that we were planning to do for a while now, and with what has been happening on YouTube with people starting to really discuss it, it just seemed like the time was right. We were not getting any answers from YouTube or the people claiming our content, and the longer content creators stayed silent the more frequently this was going to happen.

We have talked about it before though. On the Tommy Wiseau Show, filmed during our The Room, How 5 Second Movies Work, and Leave 5 Second Movies Alone, both related to our initial exodus from YouTube.) Heck, we flew 10 people out to DC during the SOPA/PIPA fiasco and met with Representatives and staffers, informing them how those two laws would affect our small business.
You mention a few uses of the copyright takedown system being used for ulterior motives, outside of the protection from copyright infringement. One is the use of takedowns to suppress, scare, or censor opinion, speech, or viewpoint. Can you tell us more about that and its potential effect on all web-based content producers? Aren’t there repercussions for fake takedown abuses like this? The example provided by Jim Sterling is a perfect example on how companies can use the DMCA system to take down negative reviews; honestly, he sums this up perfectly.

As far as we know, there are no repercussions for false claims and takedowns, as these companies continue to do so, even after releasing manual claims and letting DMCA takedowns expire.

In your experience, which YouTube claims are more dangerous: the claims made through the rightholder’s automated algorithm or manual claims, which means a human being actually viewed and decided that their claim was valid? The takedowns done through DMCA are of course the most dangerous, at least on a creator’s account. YouTube automatically issues a strike after a DMCA claim is processed. Generally one strike on an account limits you to videos that are 15 minutes or less, but the most infuriating thing about what one strike does to an account is the fact that you can’t appeal any more claims while the strike is active. You can fight it and win (this can take 10 business days), but if you let it sit then that penalty would last for 6 months. On the other side, Content ID claims are just as bad in some cases. Through the automated system, using as little as 15 seconds of a piece of work can cause the Content ID system to place up to four different infractions on the video. 1) Tracking: they can track our videos stats (I have never seen this used). 2) Monetization is disabled: no one can make money off the video. 3) Monetization is taken: the claimant takes the money the video makes until the content owner files a counterclaim, and then no money is made on the video until the claim is resolved (this can take up to 3 months). 4) Blocked videos: this one most people aren’t talking about but I believe it’s the worst one. The claimant is basically getting the effect of a DMCA takedown without issuing one. A DMCA takedown requires YouTube to take the video down (no one can see it); a global block does the exact same thing. No one can see the video. Global blocks can be placed automatically after “infringing” content is found by the Content ID system without a human looking at. Companies are getting a DMCA takedown without the legal process of one!
I think one of the most shocking aspects of the video was the section where you cover the options for the takedown claimant, which includes, without proof of an actual, legitimate takedown, the fact that the claimant can take your monetization of a video (for those that are not YouTube savvy, this means engorging any profits made by the video producer) until you file a counterclaim, and even potentially keep that money. Can you talk about when this happened to your program? Could you recover that money at amonetizell?


This happens all the time. I believe we currently have nine videos being monetized by the claimant, and currently are fighting two of them. The system allows only three counterclaims to be open at a time on a YouTube account, well at least on the creator’s end. Filing three at once potentially could result in a channel deletion if all three come back with takedowns, plus what if we have a new video that gets claimed right out of the gate. We’d want to fight that right away. Our Event Horizon review was claimed a day after it went up on YouTube, and I guess luckily for us the claim was released in 2 days. We can’t recover the money. The period for when the video is claimed by the claimant and then countered by us results in the claimant keeping the money. After a counterclaim is in place, YouTube will not put ads on the video until the claim is settled. This results in lost money for the YouTube content creator if they win their case.

You talk about an uptick in the amount of takedowns issued over the last year. What do you think is driving this move? Honestly, we have theories, but really at this point they are just that.
These programs create “safe harbors,” why do you think legitimate content makers, like yourself, are being lumped in with pirates who are actually infringing? Intentionally? No. Unintentionally? Yes. The system currently in place is and has been abused for a while, and over time claimants have realized that they can claim anything and everything and not have a single repercussion. One of our friends, Brad Jones, had a video that had zero copyrighted footage in it claimed. That video was just he and a friend talking in a car about a movie they just saw. Another YouTuber, Chibi Reviews, had DMCA takedowns done on his account just because he used a thumbnail with a copyrighted image on it; nothing else in the video had anything remotely copyrighted. They’re just taking advantage of the system, because it allows them to.

The #WTFU video notes that you have changed your production in order to try to avoid getting these takedowns (not using clips, re-enacting scenes, etc.). Has this helped at all in lowering the amount of takedowns you have received? And, from a creator’s perspective, how frustrating is it that you have to change the way you make your show and, in fact, alter your creative output because of fear of legal action? Over the past 3 years we have been inserting sketches into content, shortening the clips used, muting any audio from the movie that we aren’t directly talking to or critiquing, and recently we started doing reviews with just reenactments and no footage. These are done on titles that we know will get claimed instantly. Having a new Nostalgia Critic episode claimed takes away a large chunk of money from us, and doing clip-less reviews is the only way to make sure we’re safe, but, as stated in above, even that might not be true going forward. Frustrating? Last year a new claim was a weekly occurrence while this year we’re dealing with claims almost every other day now. It’s tough to get through the backlog of claims when A) you have a bunch of them (we’re currently sitting on 14), and B) you really can only fight two at a time and hope it takes less than 3 months.

You recommend developing the same types of penalties in the system for copyright infringers as for those that make false claims. In your words, how would those “false claim penalties” work? For the false claim penalties, blatant repeat offenders need to have some sort of action placed on them. The tricky part is they all have some agreement with YouTube after the Viacom case, and with that said all these issues aren’t fully on YouTube’s end. YouTube will never get an OK from them to disable their claim process via Content ID because there are people who still upload full movies, television episodes, and music onto YouTube. So, penalties at least relating to Content ID would never happen.

What could help this is adopting a universal percentage used on content through the video. Fifteen seconds should not be the beginning of this and 20 seconds shouldn’t be the standard that they use. The EFF proposed 90% of the original work be what is considered infringing. Heck, we’d be fine with 40% becoming the new bar.

Then there are manual claims and DMCA takedowns. Manual claims mean that someone “viewed” the video and then claimed it as infringing. The DMCA has you state, under perjury, that you believe the video is infringing on your copyright. So, when these claimants check that little box about perjury, and then let the claim lapse after the counter DMCA is filed, shouldn’t perjury possible be brought to the table? Manual claims should be the same, as they are doing the same thing as a DMCA claim, by manually claiming that they saw the video and found it to be infringing. If the claimant issues a manual claim and releases the claim, or if the claimant issues a DMCA takedown and lets it lapse or releases the claim, then their ability to do so in the future for 6 months should be limited just as our accounts get limited by their actions.

The Lenz case was viewed as a victory for fair use over these abusive takedown claims. Why do you think the situation has gotten worse, despite the Lenz’s holding that requires a fair use inquiry prior to issuing a takedown notice? Currently, we don’t see any change resulting from that ruling.

On a side note, we have had videos of ours show on TV without asking our permission, and we’re fine with that. Most of the short videos used were shown under fair use. The people showing our videos edited them and then provided commentary or criticism on said video. Fair use is a two-way street. One party should not control both sides because currently the idea of a fair use defense only benefits them.

In the end, this problem, while running rampant on YouTube, is caused by the very outdated copyright law that we currently have here.  One of the more frustrating things to come from this is people telling us that this whole situation has them scared to continue doing their videos on YouTube, and then hearing others say that they’d love to start up a YouTube channel but the current system in place has them too frightened to even try.

Fair Use Week 2016: Day Three With Guest Expert Brandon Butler


In Defense of Fair Use: The Slow Food Movement Tells Us Something Important About Our Fair Use Rights

by Brandon Butler

Eat food. Not too much. Mostly plants.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of what we humans should eat in order to be maximally healthy.

Michael Pollan, Unhappy Meals, NY Times Magazine, Jan. 28, 2007. Available online here.

Use fairly. Not too much. Have reasons.

That, more or less, is the short answer to the supposedly incredibly complicated and confusing question of how in-copyright works can be used lawfully under the fair use doctrine.

Food writer Michael Pollan has made a big impact on the way people think about what they eat. In a series of magazine pieces, books, lectures, and a recent documentary, Pollan has proposed a kind of paradigm shift, away from what he calls “nutritionism” and toward a simpler approach to healthy eating embodied in his seven-word epigram, “Eat food, not too much, mostly plants.”

I’m a big fan of Pollan’s thinking and writing, and not just because my law clinic students helped to vet the fair uses in the PBS documentary about him (#humblebrag). The forces he describes as shaping (and misshaping) the way we think about food are actually at work in many areas of life. Indeed, almost everything Pollan says about our dysfunctional relationship to food is in some sense true of copyright law, and especially of the doctrine of fair use. Let me explain.

The Problem: A Pseudo-scientific and Alienating Ideology


Pollan calls our dysfunctional relationship with food “nutritionism.” In “Unhappy Meals,” he describes nutritionism as:

not a scientific subject but an ideology. Ideologies are ways of organizing large swaths of life and experience under a set of shared but unexamined assumptions.

… In the case of nutritionism, the widely shared but unexamined assumption is that the key to understanding food is indeed the nutrient. From this basic premise flow several others. Since nutrients, as compared with foods, are invisible and therefore slightly mysterious, it falls to the scientists (and to the journalists through whom the scientists speak) to explain the hidden reality of foods to us. To enter a world in which you dine on unseen nutrients, you need lots of expert help.

Eaters in the throes of nutritionism are bombarded with the latest theories about which nutrients are good for them and which are bad. They go to the grocery store looking for foods that proclaim an abundance of fiber, or the absence of carbs, for example. This orientation systematically favors processed foods over natural foods, as the former can be easily engineered and branded to fit the latest trendy research. It disfavors simple foods like fruits and vegetables, and nutrient-blind advice like “eat less.” Instead, we are led to believe that so long as our cookies and beer are low-carb or rich in “good” cholesterol, or whatever, we can eat and drink as much as we like.

Fair Use

The situation is alarmingly similar where fair use is concerned, thanks to what I call “copyFUD.” For years our basic orientation toward copyright has been one of fear, uncertainty, and doubt, with the sense that whatever it is that makes acts infringing or fair, it’s not something ordinary people can see or understand. No one can know what their rights are without a judge’s pronouncement, or at least a lawyer’s very expensive professional opinion. Even advocates who claim to speak for the public interest have said things like “Fair use is just the right to hire a lawyer.” Ouch.

Just as nutritionism leads you to the tender mercies of processed foods, copyFUD leads you to cramped guidelines and needless licensing. You cling to advice like “Fair use allows 10% or 1000 words, whichever is shorter,” or “Fair use is just an affirmative defense, so if you can buy a license, then you had better pay up.” According to copyFUD, the law, like the microscopic particles that make food good or bad, is not something an ordinary person can perceive or understand. Count calories, count words and pages, consult obscure legal-looking guidelines. Buy some low-fat Oreos™ and a blanket license from someone or other and everything will be OK. Anything else would be irresponsible.

The Root Cause: Money (duh)


Like so many things, nutritionism and copyFUD have their roots in the machinations of people whose salary depends on your believing them. Pollan suggests that national policy may have been set on a course toward nutritionism thanks to the interventions of the meat and dairy lobbies into a congressional committee on US dietary needs in the late 1970s:

Responding to an alarming increase in chronic diseases linked to diet — including heart disease, cancer and diabetes — a Senate Select Committee on Nutrition, headed by George McGovern, held hearings on the problem and prepared what by all rights should have been an uncontroversial document called “Dietary Goals for the United States.”

…the committee drafted a straightforward set of dietary guidelines calling on Americans to cut down on red meat and dairy products. Within weeks a firestorm, emanating from the red-meat and dairy industries, engulfed the committee, and… [t]he committee’s recommendations were hastily rewritten. Plain talk about food — the committee had advised Americans to actually “reduce consumption of meat” — was replaced by artful compromise: “Choose meats, poultry and fish that will reduce saturated-fat intake.”

The change may seem subtle, but its effects were stark. As Pollan observes,

“the new language exonerates the foods themselves; now the culprit is an obscure, invisible, tasteless — and politically unconnected — substance that may or may not lurk in them called ‘saturated fat.’”

So long as the food could be manipulated or branded in a way to highlight this or that nutritional characteristic, there was no risk of anyone “eating less” (or buying less) of anything.

Fair Use

Similarly, when it came time to rewrite the copyright law (coincidentally around the same time Senator McGovern’s committee was meeting to delibarate about diet), the question of how to protect the interests of the public (especially teachers and students) presented a challenge to publishers and others whose bottom lines would swell if permission or payment was required for every new use of copyrighted materials. Publishers were ultimately able to convince key congressional committees to reject the call for a blanket exemption for educational uses and rely instead on flexible fair use. Some educators’ representatives then negotiated a set of non-binding “Guidelines” that, as McGovern’s commmittee had done, replaced broad and flexible principles (more on those later) with a strained and miserly gloss literally designed to ensure fair use would not touch anyone’s bottom line.

The House Judiciary Committee dutifully included these Guidelines in the legislative history of the Copyright Act of 1976, and they have haunted educators ever since. These Guidelines were initially characterized as a “safe harbor,” i.e., a bare minimum of agreed-upon uses, but thanks to the “right to hire a lawyer” copyFUD that quickly sprouted up around fair use, the Guidelines were often treated as the outer limits of fair use.

The Solution: A Cultural, Ecological Approach


The antidote to nutritionism, Pollan says, is to take “a broader, less reductive view of what food is, one that is at once more ecological and cultural.” Healthy eating, Pollan argues, has always been a matter of being in the right kind of relationship with other organisms in a balanced ecosystem.

Species co-evolve with the other species they eat, and very often a relationship of interdependence develops: I’ll feed you if you spread around my genes.

These relationships are highly complex and involve interactions between multiple aspects of both the eater and the eaten. Most importantly, they are relationships to whole foods, not to nutrients. Their development over time has endowed us with a natural sense of which foods are good for us and when – what looks ripe, what smells delicious, and so on. Processed foods that give us heaps of this or that nutrient but eliminate others, or fool us with artificial color, flavor, etc., undermine that natural sense and lead us astray. Once we think of food at a macro level, we can see where the typical American diet has gone astray and start to see the kinds of changes that would bring us into a better relationship to our food.

Fair Use

What does a cultural, ecological, macro-view of fair use look like? Well, it’s exactly the view we find in the US Constitution, which instructs congress to make copyright and patent laws that “promote the Progress of Science and the useful Arts.” Progress in culture requires a legal system that allows ideas to move and new generations to make new uses of existing works. That, in turn, requires a healthy ecology of makers, fans, teachers, students, collectors, curators, distributors, describers, and on and on.

Like Pollan’s eaters, our senses of fairness, of legitimate community practice, the norms, values, and relationships that have grown up around production, consumption, and reuse of culture over time can give us intuitions about when use-without-permission will make the system work, and when it will undermine the system’s healthy functioning. To a much larger extent than the copyFUD acknowledges, we can intuit when a use is fair and when it is an infringement by engaging our sense of fairness, proportionality, and reason.

My version of Pollan’s epigram is, “Use fairly. Not too much. Have reasons.”

Use Fairly

Like “Eat food,” “use fairly” sounds so broad that it’s almost useless, but just a little elaboration is enough to give it some shape, and to connect it to the caselaw. The core of fairness in this context, as courts have told us from the beginning, is that a fair use is not a “merely superseding” use; in other words, a fair use takes from an existing work without displacing it (or its typical derivative works, like film adaptations and sequels) in the market. Some courts (the ones with a more economic orientation) talk about fair uses being “complementary,” which is a similar notion.

A book review is a good example of a non-superseding fair use. A good review can give deep insights into a book’s themes, strengths, and weaknesses, but it is still no substitute for reading the book. It’s a complement to the book—it helps readers to understand and appreciate the book, and (most importantly) to decide whether to read it. Authors, publishers, and reviewers understand that all are better off in an ecosystem where reviewers can copy from their subjects as part of their reviews without payment or permission.

Another touchstone of fairness, and in a way the converse of “not superseding,” is to do something different or new, and to add value with your use. Search engines are a great example of this. Search engines work by copying the full text of the works they index, and some have argued that this means that by definition they do not add value. In reality, of course, anyone who tried to use the internet before good search engines can tell you exactly what a good search tool adds to the pages it copies. And, importantly, a search engine doesn’t replace the pages it searches; internet users still click through to explore the results.

These two aspects of fairness—non-superseding and different/new/value-added purpose—are captured in the legal concept of “transformativeness.” Some critics of recent fair use case law have tried to portray “transformative use” as having gone too far and somehow swallowed the doctrine. In reality, however, “transformative” is just the latest short-hand for this very old notion of fairness. Courts and practitioners lost sight of these basic concepts for a while, distracted by copyFUD and an obsession with highly technical arguments about market failure. The courts’ turn to transformative use is, in its own jargon-y and technical-seeming way, a Pollan-ist return to fundamental principle. The world outside of the courts is now catching up to this shift.

Not Too Much

For a long time, from at least the late 1970s all the way into the 1990s (and in some places still today), “how much?” was considered the key question, if not the only question, to ask when deciding if a use was fair. If you used a sufficiently minuscule amount, your use might be fair. Once you crossed some arbitrary line, however, your use became infringing. This was the approach of the aforementioned 1976 Classroom Guidelines, which gave miserly minima for a variety of contexts—1000 words or 10% whichever is less, etc. More recently, the district court in the Georgia State University e-reserves case used a hard quantitative line as part (though not all!) of its fair use calculus; that part of the opinion was overturned on appeal.

Nowadays it’s clear that there is no simple answer to the question of “how much is too much” for fair use, and that’s a good thing. The appropriate amount depends on what you’re doing with the material. Sometimes, as with search engines or critical use of images, the entire work may be the appropriate amount. In other contexts, as in book reviews, the appropriate amount to achieve your new purpose will be much shorter.

One important final point on the question of amount: necessity is not the standard. Some guides say that you should use no more than is necessary for your purpose, but courts have said clearly and repeatedly that the question of amount is less miserly than that. “Not too much” captures it nicely: it should be an amount that makes sense in light of your purpose.

Have Reasons

This last point is a bit “meta”—it’s not so much about how to know your use is fair as it is about how to be prepared to defend your use if there are ever questions or concerns. In a way, it amounts to not much more than “Be thoughtful.” But, if you want to be more specific, you should be prepared to account for your use with a clear story addressed to the first two parts of this epigram: Why is your use fair in a colloquial sense—not a mere substitute, but something new and valuable in its own right? And why is the amount you used not too much, given your purpose?

Having reasons is easier when you can point to community practices that help explain at a high level why certain kinds of recurrent uses are typically fair, and ways to tailor your use to stay within the bounds of community norms.


So, that’s it. Use fairly. Not too much. Have reasons. In some ways it’s not as “easy” as counting words or paying for potentially needless licenses. But, like buying, preparing, and eating good food, making healthy fair use is deeply rewarding. It keeps the cultural ecosystem in balance, too.


Brandon Butler is Director of Information Policy at University of Virginia.  There he works on implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. He is also Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Law Clinic at American University’s Washington College of Law. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.

Fair Use Week 2016: Day Two With Guest Expert Krista Cox


Thankful for Fair Use

by Krista Cox

Fair use is a critical right in U.S. copyright law, permitting the use of copyrighted material without permission from the rightholder under certain circumstances. It has been called the “safety valve” of U.S. copyright law, responsive to change and able to accommodate new technologies and developments. Amending copyright law is not an easy task; the 1976 Copyright Act took twenty years to enact (and was where the fair use doctrine was officially codified, though it was certainly not a new doctrine). Fair use, as a broad and flexible doctrine, therefore allows copyright law to adapt to the changing environment and technologies and preserve the important balance in the law without requiring constant legislative attention.


Here are just some of the ways we rely on fair use each day in ways that were inconceivable when the doctrine was codified by the 1976 act, much less in 1841 when Folsom v. March (which forms the basis of the fair use doctrine) was decided:

  • Checking e-mails.
  • Forwarding e-mails and attachments.
  • Watching and sharing news clips online
  • Using social media, such as Facebook and Twitter.FUW.Infographic2
  • Recording shows with a DVR to watch later.
  • Sending a show from a DVR to a mobile device to watch.
  • Using a web search engine like Google or Bing.
  • Using Shazam or other sound search.
  • Reading a book on an iPhone.

We rely on fair use each day because of the prevalence of technology. For example, temporary copies are constantly being made when we access webpages or open e-mails and attachments. These copies could be unauthorized reproductions, but thanks to fair use, copyright law accommodates these advances in technology without requiring legislative changes. Without fair use, the growth of the Internet and technology as we know it today would not be possible. Flexibility in the fair use doctrine has already led to these new innovations and can continue to promote the progress of science and the useful arts for technology that we may are not even able to conceive of today.

Of course, fair use is not limited to new technologies or to those listed above. ARL’s “Fair Use in a Day in the Life of a College Student” infographic, released as part of the Fair Use Week 2016 celebration, for example, demonstrates how often a college student encounters fair use on a daily basis, often without even realizing that she is relying on this critical doctrine.


From checking her e-mail, forwarding messages, doing research, writing papers, sharing information over social media, watching recordings of popular shows, taking selfies and more, the average student relies on fair use constantly. Fair uses are all around and we should be thankful that the broad, flexible fair use doctrine accommodates new ways of communicating, sharing, learning, researching, enjoying entertainment and more.

Krista L. Cox is the Director of Public Policy Initiatives for the Association of Research Libraries (ARL), in Washington D.C.  Prior to joining ARL, Cox was the staff attorney/legal counsel at Knowledge Ecology International, a nonprofit organization that searches for better outcomes, including new solutions, to the management of knowledge resources. She may be reached at krista@arl.org or on Twitter: @ARLpolicy

Fair Use Week 2016: Day One With Guest Expert Kenneth D. Crews



Welcome to the 3rd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  We are proud to once again be hosting a week full of activities, celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panels on Tuesday Feb. 23rd, Wednesday, Feb. 24th, and Friday, February 26th.  For more information see http://bit.ly/fairuseweek16

We are delighted to kick off this year’s celebration with a post by Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  


Fair Use: A Place in the World

by Kenneth D. Crews

Like so many scholars and commentators from the past and into the future, I have made the familiar observation that fair use is a distinctly American doctrine.  We trace its origins principally to an 1841 court decision handed down by the brilliant and influential Justice Joseph Story.  We repeat these chronicles and adages because they are among the essentials of fair use doctrine.  Fair use makes especially good sense in a legal system built on the adaptability of the common law and that fosters enterprise and creativity; Justice Story did articulate factors that are fundamental to our law today.  Indeed, I would dare say that fair use is not only about innovation, but it is also about diversity and business growth – hallmarks of American society.

It may, therefore, be with a bit of pride and confidence that I watch fair use become an increasingly international doctrine.  I am not trying to jingoistically unveil an American rule for all the world.  But I am comfortable in saying that flexibility in copyright law encourages creative scholarship, nurtures modern art, enables search engines for the web, and empowers teachers and students to pursue innovative teaching and learning.  Fair use also has proven to be downright practical.  It avoids an unduly strict reading of copyright in order to allow socially beneficial uses to prevail over often formalistic claims of copyright infringement.

The benefits of fair use have become increasingly vivid in an era of new technologies, diverse copyrighted works, unpredictable uses, and sometimes unstoppable pressure to experiment and explore.  As a result, this distinctly American doctrine has been invited into the law of a growing list of countries.  It has proven desirable, practical, and even necessary to get good things done.

In reality, fair use has a close foreign cousin, the doctrine of “fair dealing,” long part of copyright law in the United Kingdom and in many former British colonies.  Fair dealing has the virtues of flexibility, but it is often statutorily confined to specific applications such as research and education, so fair dealing would not likely sanction appropriation art or reverse engineering of software.  Moreover, while the factors in the fair dealing statutes may be similar to the fair use factors, courts have not given them the robust interpretations we find under fair use.  The more fluid application and scope – the “open norms” of fair use – continue their allure.

Bernt Hugenholz and Martin Senftleben have written brilliantly on court rulings that have been handed down in recent years the European Union countries that do not have fair use, but where the courts strive to find some means to infuse flexibility into national copyright laws.  Jonathan Band and Jonathan Gerafi in 2013 compiled in an important report the various fair dealing and fair use statutes found in dozens of countries.  Their study makes clear that a surprising number of countries are enacting statutes embodying language essentially identical to the American statute on fair use.

Fair use takes other routes, too.  The international nature of commerce and communication means that courts in one country often need to apply foreign law to decide cases, where events occur in multiple countries.  A court in Paris, for example, applied American fair use in a case against Google, although that ruling was overturned on appeal.  But just last year, a British court heard testimony from US experts and handed down a detailed ruling on fair use as applied to vintage videos of a Beatles concert.  Fair use, or some variation on it, is finding a home in diverse parts of the world.

That list is growing.  As I have studied copyright around the world, I find an escalating desire for fair use in many countries.  Not everyone will be enamored that fair use facilitates digitization for Google Books and the appropriation art of Richard Prince.  However, on a daily basis, fair use supports education, fosters business ingenuity, and opens technological enterprise.  It offers much to like.

In June of last year, I completed a comprehensive study of copyright exceptions applicable to libraries and archives for the World Intellectual Property Organization.  As I analyzed statutes from all 188 countries that are members of WIPO, I kept watch for any indications of fair use or variations on the familiar four factors creeping into national law.  Some of my findings on that score parallel the 2013 study by Band and Gerafi mentioned above.  In the context of the WIPO study, however, the language and spirit of fair use became a vital complement to library statutes that are often limited to specific uses under detailed conditions.

Diverse countries such as Israel, Liberia, Philippines, South Korea, and Sri Lanka are adopting the fair use almost verbatim from the U.S. statute.  A few countries go their own direction.  Laos enacted copyright law recently in 2007, amended in 2011, which includes a fair use reference (Article 111), but with sparse guidance from the statutory language.  A few Latin American countries (Dominican Republic, Ecuador, Guatemala, and Honduras) have a statute labeled “fair use,” but the substance is based on the treaty language of the “three-step test.”  While bringing that treaty language into domestic legislation raises a host of concerns, the effort to infuse some flexibility into the statutory exceptions and find appropriate local meaning of fair use gives much to applaud.

This quest for fair use around the world is no accident.  It is demand.  The demand is from public citizens who want to improve teaching and research.  It is from business leaders who want to build innovative software and develop crucial databases.  It is from publishers who need to include images and other materials in their new books and journals.  As I have visited distant parts of the world to talk about copyright, fair use is almost certain to jump into the conversation.  I have found myself in deep discussion of fair use possibilities in such places as Nepal, Armenia, Colombia, Ecuador, Finland, Azerbaijan, Nigeria, Kuwait, Uruguay, and many more destinations.

Fair Use Week may be a distinctly American holiday.  It probably already involves shopping and costumes.  But recent events demonstrate that fair use and its celebrations are quickly becoming a worldwide movement.


Kenneth D. Crews is based in Los Angeles, where he is of counsel with the firm of Gipson Hoffman & Pancione and represents universities, publishers, authors, research institutions, and many other clients on copyright and related matters.  Dr. Crews is also a faculty member in the Munich Intellectual Property Law Center and at Columbia Law School, and he is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (ALA, 3rd ed., 2012).