previous editorials LATEST EDITORIAL 4/12 - ON THE ABOLITION OF 'FAIR USE' **EDITORIAL ARCHIVES** (pre January 04)

September 2008

Coca-Cola promoter JK Rowling has struck a bad blow to fair use law in the recent court case against a small publisher who wanted to print a concordance to her Black-Magic meets Billy Bunter childrens' books. You can read about the shameful decision here.

Meanwhile, 'orphan works' legislation races through congress, with apparently unanimous support. The EFF seems to support the new law, which surprises me since it apparently proposes a mega-change to copyright law - an invidious return to the old days, when it was obligatory to register one's ownership of a copyright.

Current law assumes we own the copyright in all we do. This is right. To make everybody register their original videos, and drawings, and paintings, and mash-ups, and music, is an unbelievable pain in the ass - especially if they have to pay money to a private company in the process, as the new law proposes. Most people just won't bother - and so Disney, and the Dirty Digger, and General Electric, will be free to harvest ordinary folks' creative work from youtube or elsewehere, manipulate it, and create 'corporate derviative artwork' - WORLD'S FUNNIEST PET VIDEOS MEET SEXY SOCCER MOMS, or whatever - to fill their endless need for cheap TV.

In its current form the orphan works act looks like just another attempt at complete control of the creative industries by the studios and music companies, courtesy of US Representative Henry Waxman, Blackwater sceptic, corporate slave.

SECRET CHANGE TO BRITISH COPYRIGHT LAW December 2004

Something momentous happened to the arts and sciences in this country in September of last year. We didn't read about it in the newspapers, and there was no discussion in parliament before the change occurred. I found out about three weeks ago in the pages of a computer magazine, which is where I usually learn about my civil liberties - and restrictions thereto - these days.

What happened in September 2003 was the introduction of Statutory Instrument No. 2498, otherwise known as the Copyright and Related Rights Regulations 2003. In addition to changing British law so as to apply the most restrictive construction of copyright law to the Internet, Statutory Instrument No. 2498 abolished the concept of "fair use" for any and all commercial purposes.

You may not spend a lot of time pondering the concept of fair use, but it has (or has had) an enormous effect on the media environment we inhabit -- the way we receive information, the kind of information we receive, and the way we're educated. Fair use allows, or allowed, a text book writer to include a few lines from a Guardian review of another book, or of a film or play. It allowed Michael Moore to include footage of the World Trade Center burning in BOWLING FOR COLOMBINE, and footage of president Bush's goat episode in FAHRENHEIT 911.

The Guardian owns the copyright of the review (or else the review's author does). The TV production company or network owns the news footage. But the public interest - the free and wide dissemination of important information, in this case news information - was served by the concept of "fair use."

Fair use is still permitted in this country for news reporting purposes. But even in this case the Statutory Instrument limits fair use to material that "has been made available to the public." "Unauthorised" release of a work to the public now means that no fair use applies. It doesn't take a fine legal brain to see the can of worms this opens: what if a newspaper, or Panorama, reveals secret documents showing General Dynamics' plans for the Star Wars missile system, to be deployed in the UK?

It's in the public interest for us to know, of course, but the information is also General Dynamics' intellectual property, fully protected under this enhanced copyright law. If the corporation, or indeed the Pentagon, want their secrets kept secret, there's nothing to stop them suing the paper, or the BBC, for "theft" or "piracy" of their intellectual property.

"Piracy" is, of course, the rationale behind this huge change to British copyright law. The Patent Office makes its hatred of "pirates" very plain, and claims that scurvy privateers deserve no protection under the confusing old definition of free use: "issues of equity or fairness do not arise when considering copyright piracy or other infringement of rights."

But this is debatable, as well. In the last ten years, certain companies - mainly the Hollywood studios and the big software and music corporations - have lobbied national governments and international trade bodies to extend periods of copyright, and to extend copyright and patent law into areas where previously they did not exist.

There needs to be a rational discussion as to whether this war against "piracy" is any more right-headed or likely to succeed than the war on "terror." Wars against nouns suggest confusion on the part of the agressor, and continuous, forceful action against an unidentified, permanent threat. New media are by definition new. No one can say what art forms will come out of them, nor what new income streams will be created. For Hollywood and Bertelsmann to lay claim to this new cultural territory on their own terms isn't necessarily the best way to maximise profit, or make good art, or benefit the community. Another world is possible, as Lawrence Lessig demonstrates in his book FREE CULTURE -- which deals with the enormous benefits of a permissive creative culture, as opposed to a restrictive one.

Even the Patent Office suspects something is wrong, and that the new, improved copyright law goes to far: after the obligatory blather about showing no mercy to pirates, their site admits there are serious civil liberties implications in the new law, and suggests that legislation may be necessary to redress the balance.

The new law has certainly aggravated people in the sciences. The Royal Society published a paper entitled KEEPING SCIENCE OPEN: THE EFFECTS OF INTELLECTUAL PROPERTY ON THE CONDUCT OF SCIENCE, which says that less copyright restriction, rather than more, is essential for science to flourish in Britain.

The Royal Society paper points out that the limitation of fair use to "non-commercial" purposes gives rise to uncertainty, is not useful, and is complex to operate. Who benefits from it except for IP lawyers and those corporations large and rich enough to sue?

Justly concerned, the Royal Society considers the abolition of fair use a disaster. Their position is understandable - they're scientists - but a bit too narrow. I think scientists and artists need to get together here, and bang heads jointly, since the abolition of fair use is a disaster for the development of the arts as well.

Let me give three examples:

1. A student writes a degree paper, which includes (as all research must) a variety of quotations from other authors on her subject. This is permitted under the new restrictions, since it is academic research for a "non-commercial purpose." She gets a first class grade for her paper, which she now wishes to publish. If she receives a fee for publication, or if the publication is sold, she must A) contact all the copyright holders she has quoted, and arrange payment with them, B) rewrite the paper, removing all other authors' quotes, and crippling her article.

Everybody knows - or should know - that authors don't make money out of academic publishing. The small fees and small print-runs won't permit large trawls for copyright holders or large payouts.

So academic writing, and semi-academic books about film and the arts, are going to change.

2. A filmmaker - working on a dramatic feature or a documentary - uses temporary music as soundtrack and background music, in order to get an idea of what kind of music works with the film. Temporary music is also needed when a film is screened for the studio or the investors - especially when money is tight and the composer hasn't yet been hired. There's an aesthetic danger in this, and every film composer will tell you of a director who fell in love with the temporary music; nevertheless it's been the industry norm to use bits of other film soundtracks, on a temporary trial-and-error basis, while working towards their finished film.

Standard industry practice has now become illegal. The Liverpool lads who sent me a DVD of their unfinished, low-budget feature a couple of weeks ago have broken the law. They're engaged in a commercial enterprise (all features are commercial, by definition - no matter how low-budget, how wing-and-a-prayer) and they've taken music from existing features (some of them directed by me!) and used it as temporary music for their project.

These young filmmakers are using the copyright soundtracks of Pray For Rain as part of a commercial activity. Fair use would have been their excuse, till September 2003. Now they have no excuse, and I shall sue them.

Well, of course, I won't. I'm flattered that they liked the soundtrack music from my a couple of my films enough to temporarily re-use it. And I've put them in touch with Pray For Rain, the composers, so that they can hire 'em if they get completion funds. Their "fair use" of Pray For Rain's soundtrack harmed no one, and may generate financial and creative benefits. The abolition of fair use in this instance benefits no one, and restricts us all.

3. In the area of music, the consequences for creativity are equally damaging. For more than twenty years we've grown used to music sampling, to large or small homages or analogue/digital borrowings. Consider how Big Audio Dynamite sampled film dialogue on their first album; in the 80's, Mick Jones and his colleagues were protected by the right to fair use when they sampled the scratchy voices of Eli Wallach & co, THE BAD & THE UGLY. The resulting songs harmed no one, expanded the possibilities of the medium, and contributed to the sales of old Spaghetti Western video tapes.

Such sampling is now illegal, and United Artists studios can sue the successors of BAD.

One country which still has liberal "fair use" law is the United States. Even while the MPAA and RIAA have written the the copyright law of the Internet, they haven't been able to restrict fair use, in print or in the digital arena. William S. Strong, the US's foremost copyright lawyer and author of The Copyright Book, warned in the Columbia Guide to Digital Publishing against treating digital media differently from print or tape copies, because:

"what the fair use doctrine cares about when assessing market impact is whether the use will supplant the market for the original work, not whether it will, as an unintended by-product, enable scofflaws to avoid copyright fees... the argument is dangerous, because, taken to its logical conclusion, it could seriously undermine the role of fair use in our culture, and that would have disastrous consequences."

What the top US copyright expert warned against, we have just done - without publicity, without debate. "No court has yet suggested that any such revisionism is called for," Strong continues, "and we should hope none will." No court has suggested such revisionism in Britain, either. Yet it has stealthily occurred.

According to the Patent Office website, Statutory instrument No. 2498 was made, or decreed, or however these extra-parliamentary dictats come into being, so as to harmonise British intellectual property law with that of the EU.

Yes, but - why? Other British laws are not in harmony with EU law - the right to a fair trial, or the right to join a union, to strike, and to picket - and the government and Whitehall seem quite happy with the disparity.

Why, specifically, was copyright law "harmonised" when other laws are not? What media corporations lobbied for the extension of copyright law, and the abolition of first use, in Europe?

As a result of this change in the law, American creators, scientists, and academics currently enjoy a right that Europeans don't. But that may change. The same media corporations which lobbied for a more restrictive law in Europe can now appeal to the World Trade Organisation. If the restrictive EU law isn't overturned, the studios and record companies can demand - via the WTO's Agreement on Trade-Related Aspects of intellectual Property Rights (TRIPS) - that US law be "harmonized" with it.

At that point, shedding a crocodile tear, Pres. Bush will have no choice but to insist that US copyright law match the EU rules. American academia, scientists, and documentary filmmakers will be in the same boat as the Europeans are now. Goodbye fair use, goodbye Michael Moore, hello new editions of The Copyright Book and The Columbia Guide to Digital Publishing, explaining what rights American authors, scientists and artists don't have any more.

The assault on the "fair use" doctrine - our right, up until last September - has worldwide implications. If we don't fight for it here, in the next year, "fair use" could easily be lost to creators, artists, and scientists worldwide, and gifted, by compliant governments, to the multinational corporate beneficiaries of the WTO.

The Royal Society recommends that Statutory Instrument No. 2498 and the abolition of "fair use" be renegotiated when the Copyright Directive 2001 is reviewed in 2005. A consultation on changes to the EC Directive is currently under way. The government will certainly hear from British scientists, but they should also hear from the creative communities, including film, music and television, and from all branches of academia.

Anyone interested in having his or her voice heard should contact: Industry Minister (Hewitt), Science Minister (Sainsbury) & Culture Minister (Jowell), as well as the CEO of the Patent Office (which helps formulate IP policy).

Mention Statutory Instrument No. 2498 and tell 'em what you think of it. Communicate your thoughts about "fair use." And let 'em know if you'd like to see a less-restrictive, more-permissive, fairer Copyright Directive in 2005.

You're welcome to send 'em a copy of this article, though a reference to the Royal Society paper on the effects of IP policy on science would probably be more impressive/effective.

Save Fair Use! You'll be glad you did.

Alex Cox
alexcox.com

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