Because part of my assignment at the eIFL IP conference was to talk about library copyright policies, it was inevitable that we would talk some about fair use. For one thing, it is what I know about, so I invariable began a discussion of a particular library issue by talking about how it would be approached with fair use versus how you could address the same issue in a jurisdiction without an exception like fair use. Although a few countries — notably Israel and Japan — have adopted a US style fair use exception, none of the countries represented at eIFL had such a provision. So we were left to discuss just how important it is, or is not, for libraries to function.
The conference began with a presentation from Becky Hogge, who was the Executive Director of the Open Rights Group in the UK and remains a writer and commentator on technology and IP. Becky ended her presentation by pointing us to a web site called Thru-You.com where someone named Kutiman makes music mixes that are created entirely from other videos on YouTube. It is hard to describe these videos, but a lot of fun to watch them. The point to emphasize here is that these videos are another example of the flexible application of fair use, especially regarding the role of transformative reuses of copyrighted content.
With that introduction, it was interesting to hear about and discuss the relative merits of fair use for libraries. I am sympathetic to the worry that simply adopting a word-for-word version of the US section 107 will not be effective in other countries. After all, section 107 was not added to the US law until fair use already had about 100 years of development in US courts, and the accumulation of case law has continued since the 1976 act was adopted. It is hard to know how fair use will function when exported to a country that lacks that common law foundation to support the rather vague terms of the “equitable rule of reason” that we call fair use.
Many countries seem much more comfortable with the specific exceptions that make up what is often called, at least in the Commonwealth Countries, “fair dealing.” The model copyright law that eIFL has prepared for developing countries basically takes this approach, with specific exceptions for personal research, educational activities, library services, and the needs of persons with disabilities, to name only a few. All of these are tremendously important, and the advantage of having these specific exceptions is that they give a level of certainty that fair use never offers. US law, of course, has lots of specific exceptions, and I wish it included more of those suggested by the eIFL model law. Nevertheless, I still think there is an advantage to fair use. There is no other copyright exception that offers the flexibility that fair use does, especially in the face of technological change. We simply cannot know that a specific exception that works today for libraries or for researchers will still work tomorrow when the needs and services have moved to a different type of technology that may implicate an entirely different set of rights. The shift from print-based interlibrary loan to a system largely using digital copies and digital transmission, which are clearly outside of the “single-copy” parameters of the specific ILL exception in section 108, offers an example of why the decision around fair use versus specific exceptions needs to be both/and, not either/or.
For anyone interested in how fair use works, and what problems it generates, in an educational context, there is no better place to begin than with the series of blog posts by Peter Jazsi as guest blogger for the Collectanea blog at the University of Maryland University College Center for Intellectual Property, which begins with this post called “Educational fair use: a provocation.”