By Anandashankar Mazumdar
Jan. 28 --Despite some
complaints about transgressions on copyright interests, the bounds of copyright
law's fair use doctrine are generally workable according to most witnesses
testifying on Jan. 28 before the House Subcommittee on Courts, Intellectual
Property and the Internet.
The hearing, titled “The Scope of Fair Use,”
continued the exploration of copyright law initiated last year by Rep. Robert W.
Goodlatte (R-Va.), the chairman of the full House Committee on the
Thinly attended by committee members, the hearing was
interrupted by a vote on the floor of the House of Representatives on an
unrelated matter. However, the five witnesses were able to complete their
statements and field a few questions from the legislators who did turn up.
Peter Jaszi, a law professor at American University, Washington, D.C.,
proposed a “unified field theory” regarding the incorporation of the notion of
transformative uses into fair use jurisprudence. As a result, he said, fair use
rulings by courts are generally “both patterned and predictable.”
Besek, a law professor at Columbia University, generally agreed that the fair
use doctrine worked well, but expressed some concern about the expansion of the
notion of transformative uses, specifically expressing discomfort with regard to
the Google Book Search case, which found that Google Inc.'s mass digitization of
books for the purposes of online searching constituted a transformative fair
Naomi Novik, a novelist and
representative of the Organization of Transformative Works, New York, advocated
for a broad application of fair use. She said that her own career as a writer
began with writing fan fiction involving characters from “Star Trek: The Next
Generation,” and that budding authors and enthusiasts should not be constrained
by fears of running afoul of copyright law.
Novik talked about her
interaction with a community of fan fiction authors who shared their works on
the internet and said “I'm not a lawyer, but I can tell you that what we were
doing felt absolutely fair.”
She pleaded with the committee not to
require that fan fiction authors be required to seek licenses in order to engage
in their hobby.
“Licensing is just not a realistic alternative,” she
said, not less because fan fiction authors often do not have the time,
resources, or knowledge to enter into a licensing system. Furthermore, she said,
“Licensing invariably stifles transformative work,” noting that copyright
holders that offer licenses have the motivation of preventing
Novik asked the committee to pursue policies that would
make it easier for fan fiction authors to engage in their activities without
fear of facing infringement claims or statutory damages.
On the other
side of the coin, David Lowery, a composer and musician based in Richmond, Va.,
and lecturer at the University of Georgia, Athens, Ga., labeled fair use as “an
excuse for trumping the rights of authors.”
In particular, Lowery
criticized websites that display lyrics to songs without permission and claim
transformative use by inserting hyperlinks to footnotes or commentary.
Lowery scoffed at the idea that sampling or remixing should not be subject to
licensing requirements, noting that “there exist robust market-based mechanisms
for licensing samples” and that the hip-hop music genre has thrived while being
required to seek licenses.
He wrapped up his remarks with a question:
“What's so hard about asking permission?”
Finally, Kurt Wimmer,
representing the Newspaper Association of America, Arlington, Va., noted that
newspapers find themselves on both sides of the fair use question, as potential
plaintiffs and defendants.
Either way, Wimmer said that he had confidence
in the development of the common law of fair use through the courts and did not
see a reason for Congress to amend the Copyright Act to tighten or loosen the
scope of fair use.
To contact the reporter on this story:
Anandashankar Mazumdar in Washington at firstname.lastname@example.org
To contact the editor
responsible for this story: Naresh Sritharan at email@example.com
To view additional stories from Patent, Trademark &
Copyright Law Daily™ register for a free trial now
SIGN UP FOR OUR FREE NEWSLETTERS >>>>