{"id":168,"date":"2015-02-27T05:27:38","date_gmt":"2015-02-27T05:27:38","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/copyrightosc\/?p=168"},"modified":"2015-02-27T05:52:32","modified_gmt":"2015-02-27T05:52:32","slug":"168","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2015\/02\/27\/168\/","title":{"rendered":"Fair Use Week: Day Five With Guest Expert Dr. Matthew Rimmer"},"content":{"rendered":"

\"FUW<\/a><\/p>\n

For our final blog post of the week\u00a0we are honored to welcome Dr. Matthew Rimmer. \u00a0Dr. Rimmer is an\u00a0Australian Research Council Future Fellow working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law and an associate director of the Australian Centre for Intellectual Property in Agriculture.<\/em><\/p>\n

<\/h3>\n

<\/h3>\n

<\/h3>\n

<\/h3>\n

 <\/p>\n

 <\/p>\n

Who Killed Fair Use? A Copyright Murder Mystery <\/strong><\/h3>\n

Down Under<\/strong><\/h3>\n

 <\/p>\n

 <\/p>\n

by Matthew Rimmer<\/strong><\/p>\n

Fair Use Week has been celebrated this week in the United States, with great gusto and enthusiasm. At Harvard Library, Kyle Courtney commented<\/a>: \u2018Fair use is critical and important to innovation, scholarship and research in the United States.\u2019 Kenneth Crews<\/a> emphasized that \u2018the new technological ventures, like other creative pursuits, require fair use and other copyright limitations for experimentation and success.\u2019\u00a0 Legal director Corynne McSherry of the Electronic Frontier Foundation<\/a> has highlighted the significance and the importance of the defence of fair use: \u2018Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn\u2019t become control of the right to create and innovate.\u2019 For Techdirt<\/em>, Mike Masnick<\/a> has emphasized that fair use is a right \u2013 and not an exception or a mere defence. Peter Jaszi and Pat Aufderheide have highlighted the contextual operation of fair use in particular artistic communities<\/a>. Molly Van Houweling<\/a> of the Authors Alliance has written about the ecstasy of influence \u2013 the role of inspiration and appropriation in all acts of artistic creation. Fair use has been celebrated as a many-splendored legal creation.<\/em><\/p>\n

While fair use has been feted and celebrated in the United States, fair use has been under attack, both in the United States, and in other jurisdictions. Fair use is in peril. Copyright owners have sought to confine the operation of fair use in litigation in the United States, and in policy debates. Political lobbyists have sought to prevent the adoption of fair use in Australia, and other countries elsewhere in the Pacific Rim. Fair use has been undermined and undercut by intermediary liability schemes, technological protection measures, and contract law. Moreover, fair use has been threatened by international trade agreements \u2013 such as the Trans-Pacific Partnership.<\/em><\/p>\n

In his book Republic, Lost<\/a>, Professor Lawrence Lessig observed that copyright reform would be unobtainable until there was substantive reform of political donations and lobbying in the United States. He noted: \u2018Between 1998 and 2010, pro-copyright reformers were outspent by anti-reformers by $1.3 billion to $1 million \u2013 a thousand to one.\u2019 Lessig emphasized that such political donations distorted policy-making in respect of copyright law in the United States across a range of topics \u2013 including the copyright term extension; copyright exceptions; and copyright enforcement. The problem has been further accentuated by the decision of the Supreme Court of the United States in Citizens United<\/a> \u2013 which allowed for greater contributions of \u2018Dark Money\u2019. Professor Zephyr Teachout has highlighted such problems in the political and judicial process in her book, Corruption in America<\/a>.\u00a0 There has been concern in that United States that copyright owners have been trying to curtail the sweeping defence of fair use in the debates over the reform of copyright law<\/a>. The language of \u2018fair use creep\u2019 has been deployed by copyright owners.<\/p>\n

In Moral Panics and The Copyright Wars<\/em>, William Patry said that \u2018the current piracy campaign is intended to create a negative association with all acts not authorized by copyright owners, including uses that are clearly fair use and therefore, lawful, such as non-commercial copying for personal use.\u2019 He emphasized how copyright owners sought to confine and limit the scope of copyright exceptions. In his book, How to Fix Copyright<\/em>, William Patry again highlighted the moral panic over fair use promoted by the copyright industries. He said that \u2018the rhetorical device of turning fair use into a moral panic is made by those who oppose adapting copyright to the digital era.\u2019 Patry commented: \u2018Fair use thus serves as a classic moral panic: an effort by vested interests to preserve the status quo through creating a false enemy whom, we are told, must be vanquished for the alleged good of society as a whole.\u2019<\/p>\n

Legacy copyright industries have sought to frustrate, delay, and block the introduction of broad copyright exceptions \u2013 such as the defence of fair use – overseas. In this context, Australia is an illustrative case study. Over a number of decades, there have been a number of policy inquiries, which have recommended the adoption of a defence of fair use under Australian copyright law. Yet, copyright owners have engaged in a concerted effort to block the adoption of such recommendations at a political level. There has been a campaign to kill and murder fair use before it has a chance to develop in Australia.<\/p>\n

In 2014, the Australian Law Reform Commission announced the publication of its report on Copyright and the Digital Economy<\/a>. The centrepiece of the report was the proposal for the introduction of an open-ended defence of fair use for Australia. The Commission stressed:<\/p>\n

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\u2019s 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.<\/em><\/p><\/blockquote>\n

 <\/p>\n

The report emphasized that a defence of fair use would be particularly useful to address emerging trends in the digital economy \u2013 such as 3D printing, additive manufacturing, Big Data, cloud computing, and the Internet of Things (IOT). Professor Jill McKeough \u2013 who was in charge of the inquiry \u2013 has highlighted the importance of access to content under copyright law.<\/p>\n

 <\/p>\n

Professor Jill McKeough on Copyright Law and Access to Content (2015)<\/strong><\/p>\n