Fair is fair, isn’t it?

It was certainly good news to see this news story from the BBC reporting that Prime Minister David Cameron has initiated a review of the UK copyright laws with an eye toward revisions that would accommodate the way innovation happens in the Internet age.  Every country should probably undertake this kind of review periodically, although this blog post from TechDirt raises doubts about how serious the review will be.  In any case, it is worth looking closely at the announcement Cameron made and seeing what we can glean.

First, Cameron was very clear is stating that his attention was turned to this subject when he was told by “the founders of Google” that “they could not have started their company in Britain.”  One thing this remark does is remind us of how important short, compelling messages are in capturing the notice of lawmakers.  I often wish we could get legislators to pay enough attention to really understand what copyright is for and how it could be improved, but that is a foolish hope.  In reality, short messages that cry out for specific action – framing devices that state a clear reason why a politician should care – are vital.

Another thing we learn from this remark is how much Google sees itself as dependent on the U.S. fair use provision.  It is precisely a U.S.-style fair use clause that Cameron wants to consider for the U.K.  The Guardian newspaper immediately took Cameron to task for that suggestion, arguing that the government was too much “in the thrall” of “IT giants.” The Guardian went on to tell Cameron that there was little difference between fair use in the US and fair dealing in Britain, and that fair use “does not allow what Google does either.”

This latter statement is badly misguided.  It is very clear that the heart of Google’s business – the provision of Internet searching and indexing – is fair use and several courts have ruled that way.  Perhaps Mr. Arthur of the Guardian is thinking about the Google Books project, the fair use issue in regard to which has never been resolved.  The utility of fair use for supporting Internet innovation is really hard to dispute, although recent interpretations of fair use in some court cases have not always allowed it to live up to its potential.  It is worth taking a minute to see why fair use may be preferable to fair dealing for supporting innovation.

Fair dealing generally refers to a specified set of acts that will not be considered copyright infringement.  In the U.K, private and research purposes, educational coping, news reporting and library lending are all among the acts consider fair dealing (see item 8 in the linked document).  But these lists are exclusive; they do not offer the flexibility to encompass new uses and technologies not known when the law was passed.  Some of the items on the U.K. list of fair dealings are covered by specific exceptions in U.S. law — library lending, for example, is permitted by section 109 – while others are left to the broad but dubious embrace of fair use.  Fair use is an addition to the specific exceptions and is intended to provide exactly the flexibility that fair dealing lacks.

The irony here is that while I agree that Britain needs a fair use provision that would give them the flexibility to experiment and innovate in the knowledge economy, I also envy fair dealing provisions to some extent.  If the U.S. had the fair dealing exemption for educational copying, for example, we would be spared the battles over course packs and e-reserves, and education would be somewhat less expensive for our young people.  So I think it is a mistake to present fair use or fair dealing as an either/or choice; a balance between the flexibility offered by fair use and the certainty offered by specific exceptions for common and socially valuable activities is the goal our copyright reform should pursue on both sides of the Atlantic.

The final point I want to make about the BBC report is regarding the comment from the chief executive of the British Publisher’s Association, who warned that “The immutable fact remains that the people who generate and invest in creativity deserve and need to be rewarded.”  This comment is one of those bromides, often heard in the copyright debate, that really means “keep paying me and don’t make me change the way I do business.”  My real dispute is with the phrase “immutable fact.”  As the knowledge economy changes rapidly, few “facts” will really be “immutable.”  Indeed, they may not be facts at all; we desperately need better data to assess whether and how well copyright laws actually do provide incentives for authorship and creativity.  Certainly we know that there are broad swaths of creators (in academia, for instance) who create without regard for the economic incentives created by copyright.

And there are probably other “facts” we need to consider.  As a panel at a recent meeting of the World Intellectual Property Organization testified, the “Byzantine maze” of copyright regulations is “stalling monetization of new business models.”  This is the fact to which Prime Minister Cameron is responding, as well as to the charge to treat the need to reform copyright so as to support innovation with the same urgency that we fight piracy of copyrighted works.