It is a curious coincidence that in the past few weeks I have become aware of two different — very different indeed — documents which purport to refute common copyright myths. The differences are easily understandable, given the two sources of the respective documents, and each reflects, to some degree, the prejudices natural to its authorship. It is, I hope, an interesting exercise to look at them side-by-side and see if and where each goes astray.
For an odd mixture of dead-on accuracy and exaggeration in one’s own economic interest, it is hard to beat this list of Ten Common Copyright Myths from the UK Copyright Service. The Copyright Service is a collective registration services that clearly depends for its income on putting copyright holders in fear of infringement and significant financial losses; this is evidenced by their use of the frequently discredited figures regarding the alleged cost of IP “piracy” worldwide. The Copyright Service makes money when rights holders are convinced that they need the extra layer of protection that registration with the service (a private equivalent of the registration available in the US from the Library of Congress’s Copyright Office) provides.
The accurate part of the Copyright Service’s list of myths is the first half; myths 1-5 are accurate and correctly described. They represent misunderstandings that are frequently heard, although the myth about “poor man’s copyright” is probably not so common as to deserve being treated as copyright myth number 3, but it is a direct threat to the Service’s own business model.
Where things go wrong with this document is in myths 6 through 9. The statement of each myth does, in fact, recite an inaccurate statement, but the debunking of these myths really overstates the scope of protection and the need for permission. Indeed, the claim that one should just always seek permission simply because it is not true that using 10% is always fair use merely substitutes one myth for another. Fair use and fair dealing are necessary and inescapable; ordinary citizens could not go through their days without committing infringement were it not for these provisions. They cannot be simply dismissed as unreliable, especially because the transaction costs of “always” seeking permission would be prohibitive and would swamp an organization like the UK Copyright Service.
In addition to this re-mythologizing that occurs in myth 7, myths 8 & 9 represent an exaggeration of the risk involved in using copyright material in some cases. Myth 9, attempting to assert how easy it is to prove copyright infringement, completely ignores the existence of numerous defenses available to users. Such defenses are an indispensable part of the copyright law in the US and the UK; they preserve the balance of the law and protect important social values like creativity and free speech.
On the other side of the scales is this article on Urban Copyright Legends from Brandon Butler of the Association of Research Libraries. Butler’s approach is obviously more from the side of users than of rights holders, and the difference of perspective makes reading the two similarly titled documents an interesting experience. Most importantly, Butler offers a much more balanced and realistic perspective on fair use than does the Copyright Service.
In his discussion of “fair use legends” Butler does a nice job of presenting fair use as what it really is, a framework for a responsible analysis of risk in any given situation. Fair use is never a certainty, but it is not a total crap-shoot either. Butler shows that the burden of proving fair use is a relative matter; in some situations, especially non-profit educational settings, it is a relatively easy and secure analysis that we can and do rely on everyday. In other cases the risk may be greater, and the value of the activity must be weight against the cost of permission and the potential cost of litigation. This is a calculation that every librarian and academic actually does all the time, and more familiarity with how it works is a major value to be gained from Butler’s article.
In the second part of his article, on legends associated with the performance exceptions in section 110 of the Copyright Act, Butler is on somewhat less secure ground. His debunking of urban legends relies here on some distinctions that are not as well-established as we might like. Relying on legislative history, for example, is always a tricky business. That there has not been major litigation over the TEACH Act, for example, is a good thing, but it leaves us rather more uncertain about just where the lines can be drawn than Butler suggests. Likewise, the line between those videos that are “primarily marketed for educational use” and those that are available for use under 110 is not really very clear and has never been subject to judicial interpretation. Nevertheless, the examples Butler offers do support his point that over-interpreting this language can lead to needless self-restriction well beyond what even our over protective copyright law requires.