IP Subcommittee Kicks Off New Year With Hearing on Fair Use Doctrine

Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...

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 Judiciary.

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.”

June M. 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 use.

Vigorous Defense of Fan Fiction

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 transformation.

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 amazumdar@bna.com

To contact the editor responsible for this story: Naresh Sritharan at nsritharan@bna.com

Request Intellectual Property on Bloomberg Law