Wednesday, February 24, 2016

Fair use, dealings, or duty: required fairness in copyright law

One of the other authors writing a series of articles for Fair Use/Fair Dealings week is Meera Nair via her Fair Duty blog.  The use of the word "duty" in the title is explained on her about page as "to make evident the duty of copyright holders to follow the law and not impede legitimate exceptions to the rights of control afforded by law. "

This will be a theme of my articles this week as well.  I am an author, part of the creator side of the copyright debate.  I spent a considerable part of my life, including attending and writing about most C-32/C-11 committee hearings, to all too often hear disrespect for the rights and interests of fellow authors from people alleging to represent us.

This fairness aspect of copyright law has been used to enable technology which specific politically powerful copyright holders would otherwise have tried to deny the existence of such as the VCR.  It should be obvious that the VCR and the various video capture, editing and distribution technologies that derived from it has enabled vast amounts of creativity.  This creativity would have been denied if it were not for US Fair Use being used to clarify the legality of the technology.  Much of the modern technology creators use today has been opposed by groups alleging to represent creators, with the fair use/dealings aspect of copyright law being as critical to protecting the interests of creators as the rest of copyright.

To hear educators spoken about by devotees of Access Copyright you would think all teachers are thieves. I had to endure a rant by one devotee when she visited me in my home, with my high-school biology teaching wife leaving the room because of how offensive the conversation had become.  The reality in educational copyright is very different than devotees of Access Copyright claim.

To hear some copyright holding intermediaries talking about the general pubic in copyright hearings you would think that there is society-wide moral decay of Sodom and Gomorrah proportions.  The reality is that much of what is claimed to be infringement by these lobbiests should be considered fair dealings for non-commercial purposes.  The roots of the discussed problems is not a matter of the morality of the general public, but outdated business and content distribution methods attempting to be enforced by these copyright holding intermediaries.   They are far more interested in society conforming to how they want creativity to be distributed and accessed than actually accepting the money of fans.

In my mind the justifications for copyright come from the two parts of article 27 of the United Nations Universal Declaration of Human Rights which states:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
It is infuriating to see, but the over-reaching control attempted by some copyright holders seeks to deny both cultural and creators rights. While in copyright there are exceptions to every generalization, the fast majority of problems I saw with copyright were examples of attempts at over-reaching control by copyright holding intermediaries creating barriers to audiences and follow-on creators compensating creators.  There was this odd sense of entitlement from these intermediaries, believing that the law should enforce conformity rather than the law trying to protect the balance of rights expressed in UDHR article 27.

Discussing fair duty is very appropriate for this area of law, and is an area of law I have a number of suggestions for expansion to solve problems created by copyright holding intermediaries.

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