Fair Use/Fair Dealing Doesn't Require Payment Or Permission
from the how-things-work dept
It continues to amaze me just how much people can’t get their heads around the rather basic concept of fair use (or, as some countries prefer, fair dealing). Howard Knopf has a blog post, talking about a Canadian university that, for reasons that make no sense, has included in its “copyright guidelines” the claim that it pays an annual fee to Canadian copyright collection society Access Copyright (currently involved in a bit of a controversy concerning its fees) to cover “fair dealing” copying.
However, as Knopf writes, this makes no sense:
This, of course, reflects a serious misunderstanding. If the copying is “fair dealing”, it is unnecessary to pay Access Copyright or anyone else for copying it.
The whole point of fair use/fair dealing is that it allows you to make use of works without permission or payment.
And yet it’s very, very difficult for some people to comprehend this. For example, we were recently sent an email from someone who didn’t like that we quoted a story that he had written, first saying that it did not meet his definition of fair use. I wrote back (nicely, I thought) explaining why our use was fair (we only used a small portion of the text, we added significant commentary on top of it, etc.). This person wrote back saying that he was very upset that we failed to “negotiate” with him, and until we came to a mutually agreed upon definition of fair use, we were no longer “permitted” to quote anything he has written.
I’m really not quite sure how to respond to such people, because explaining to them what fair use is seems to only make them more upset. The whole point of fair use is that we don’t need permission. We certainly don’t need to come to a mutually agreed upon definition of what that person considers fair use (since he outright rejected my definition, despite my offer to send citations showing that my definition is the legal one). Once you’re talking about permission or negotiating, you’re no longer talking about fair use.
Of course, in this case, there is a fairly simple solution: even though we legally can, I’ve instructed everyone here to simply never use this site as a source again, since the site’s owner apparently would prefer not to have our traffic. That’s got nothing to do with “fair use” however…
Filed Under: canada, fair dealing, fair use, permission
Companies: access copyright
Comments on “Fair Use/Fair Dealing Doesn't Require Payment Or Permission”
Part of the Plan
Fair use doesn’t really make sense in a world where every idea is OWNED by someone for an arbitrary time period. If i own a toaster (which i do) no one can walk into my house and “fair use” toast some bread whenever they want without permission. Erosion of fair use is the logical conclusion of the “ideas as personal property” mindset.
Part of the Plan
Nit it’s imaginary. You should not be allowed to tax ideas. Period.
Fair use doesn’t really make sense in a world where every idea is OWNED by someone for an arbitrary time period. If i own a toaster (which i do) no one can walk into my house and “fair use” toast some bread whenever they want without permission. Erosion of fair use is the logical conclusion of the “ideas as personal property” mindset.
The problem with the analogy is that “your” toaster is in someone else’s house. Also, if they modify the toaster to toast anything other than toast (say bagels or pop-tarts) you can potentially threaten them with legal action.
Part of the Plan
Ideas are by definition intangible and are therefore not copyrightable. The application of those ideas on the other hand is what can be copyrighted.
Also you seem to have fallen for the propaganda of the whole copyright is OWNERSHIP team. Cultural communication by default is not owned by anyone and instead is owned by EVERYONE, This is where copyright comes in. It is a limited right allocated by society (government) to allow the actual creator to control and exploit their work for a limited time until it goes back into public ownership (hence the term public domain).
As for your toast analogy, umm that would be classed as tort of trespass, or theft of electricity (utility fraud), larceny of bread (if it was yours originally), and maybe conversion. But has no similarity to copyright or even ownership of tangible goods in any way at all.
Re:
Fellow Techdirtians, can we make a deal?
Can we all stop trying to make analogue analogies for digitial things? They never really work and just get the argument dragged off down repeated dead ends.
We’re all on a site called techdirt, we assume a reasonable level of technical understanding*, let’s just stick to describing things clearly and dump the inaccurate analogies.
* I know, I know…
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What about metaphors? 😉
http://freevideolectures.com/Course/2656/CSCI-E-2-Bits/51
[btw this is a great open source video about ideas and copyright by Prof. Harry R. Lewis of Harvard Uni]
Rejecting the property model
As Beech said, a lot of people genuinely buy into the “property” model for abstract ideas.
“I said it, therefore it’s mine and you can’t use it without paying me or getting my permission”
“I thought it, therefore it’s mine and you can’t use it without paying me or getting my permission”
Only once we fully recognise that it isn’t *copying itself* that’s morally wrong, but *deception regarding the origins of a work*, can we ever move on to creating a legal system that makes more sense.
Trademark law, when properly applied to the task of preventing consumer confusion, is already there. It’s primarily about it being illegal to mislead people about the source of goods and services in order to misappropriate someone else’s reputation.
Patent law would take a long step down that road by including an “independent invention” defence, with plaintiffs having to provide reasonable evidence that copying was likely before a court case could proceed.
Copyright law needs to be refocused more on preventing plagiarism, rather than all copying. Such an approach would essentially make “CC-BY” the only state enforced level of agreement, with any further rights being handled either by contractual agreements, or else by becoming part of the realm of social, rather than legal, enforcement.
Much of the open source world is moving this way: a lot of the *code* is available under very permissive licenses, but the *names* are controlled under trademark law. If all you want to do is use the software, no problem, but if you want to make use of the *name* without complying with the organisation’s trademark usage policy, then you’re asking for legal trouble.
Sure, trademark law is open to its own abuses (especially aggressive trademark holders starting lawsuits over nominative use, or other cases where there is no chance for confusion), but it’s anti-fraud foundation means it is in much better shape than either patent or copyright law.
“Fair Use” is just a legal loophole that we haven’t yet been able to close. Don’t worry though, we’re working on it!
Fair isn't the right word
I suspect the problem with the person who e-mailed you is that the literal definition of fair use differs from the legal one.
That is, if you didn’t know anything about the law, you’d interpret “fair use” in the same way as “fair price”. Suppose someone comes up to you, gives you $200, and takes your phone away. He says he’s entitled to do so, because the $200 is a fair price for your phone. You’d naturally protest, because (1) he unilaterally declared what was fair instead of negotiating, and (2) you weren’t offering to sell your phone in the first place.
Likewise, your quoting this guy’s story isn’t “fair” because there wasn’t any negotiation or offer to sell on his part. It sounds like he reacted the way he did, because he interpreted “fair use” literally.
In the future, maybe just avoid the word “fair”. For example, “Section 107 of the Copyright Act provides a legal exception for short quotes” or that “you have a First Amendment right to quote someone for the purpose of commentary.” Or you could just try capitalizing things — e.g. the legal doctrine of Fair Use.
I just want to say
That any pearls of wisdom I post here or on any other public forum/blog are free for any of you to use in what ever way you see fit. I believe in sharing information freely to the betterment of our society.
Crazy
Lets just say that copyright is broken at the moment and needs to be fixed. If people are not understanding what fair use is that is a problem with the copyright laws not the people using them. How many people have been conned into paying a fee to use material under fair use , this is just crazy and i blame the copyright czars.
The only time copyright should have any power is if a business or a person is using the copyrighted material to generate an income. Even then it has to be fair as quoting a few sentences or a couple of paragraphs to make a point is not copyright, or should not be.
If someone uses content from a site and does not link back to that site or advise who created the content, then i would think that could be seen as trying to “sell” the content as your own. and that should be copyrighted.
The copyright industry has gone crazy, they have made it so hard to do anything that people are now just ignoring it. That is when a law needs to be changed to become more fair
Re:
Metaphors are like similes.
Typo
I think the main problem with people not understanding the price for quoting and building on someone else’s work, is that people keep typoing the legal definition.
Even techdirt can’t spell “Fare Dealing” properly!
Subtle joke there?
we were no longer “permitted” to quote anything he has written.
Nice.
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Saying metaphors are like similies is like saying this is like an analogy.
Part of the Plan
I think the post above was intended to be sarcasm…
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What you should really work on is closing those ugly holes on your face, the ones that air ruses in and out of on a regular basis.
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missed sarcasm?
Fair isn't the right word
Sometimes you just need to snap out of the delusion that physical product = intellectual product.
A physical product is hard to reproduce. An intellectual product is not.
Citations are one of the most universally accepted fair uses of written material. Science would be significantly less accessible without this right.
What is essential is that this guy is paranoid about the use of his material and it is probably far more about his “Keeping up Appearences”(R), than what is being cited.
He might have a defence in other laws than copyright but that is not what he is going for.
Part of the Plan
You wouldn’t download a toaster…
Part of the Plan
So, according to you, no one can do a review of your book and use a couple of quotes to make their point about the quality (good or bad) of the writing?
Re:
Nope
I’m really not quite sure how to respond to such people, because explaining to them what fair use is seems to only make them more upset. The whole point of fair use is that we don’t need permission. We certainly don’t need to come to a mutually agreed upon definition of what that person considers fair use (since he outright rejected my definition, despite my offer to send citations showing that my definition is the legal one). Once you’re talking about permission or negotiating, you’re no longer talking about fair use.
Fair use is a right, but it’s a right to use someone else’s property. The reason people negotiate over it is because if an agreement is made, then there is no concern about infringement. The problem with fair use is that the person exercising their fair use rights always runs the risk that his assessment of what use is fair may turn out to be incorrect. Since fair use means using someone else’s property, there is always a chance that the use could turn out to be infringing. You don’t have to negotiate, but doing so makes sense since having a license is better than not having one. It’s riskier to claim fair use later than it is to negotiate a license up front.
Fair isn't the right word
A better analogy would be someone walking on the beach in front of your house. You can own the beach-front property, but since you can’t own the ocean, there has to be some point where people can freely walk on the beach in front of your house. And they don’t need permission to do it.
I think this nicely illustrates the conflict of rights between privately owned expressions and public culture.
Re:
I used this analogy above, but I think it is similar to public access to beach-front property. Sure, you could go and ask every home-owner where you are allowed to walk, but that just gives them incentive to build a fence into the ocean.
And no, it isn’t someone else property. If I hear it or see it, I own it. You can’t own what I experience. If you didn’t want others to experience, you would have kept it secret. You own your secret diary, but not your blog. _However_, as a benefit to ME, I’ve agree to not *copy* it for a few years so you’ll have incentive to create more.
Ask indigenous cultures, which have oral (and no written) traditions, if you “own” what you say, sing, etc. They would laugh at you.
Re:
Chris B (and someone else earlier) I think hit the nail on the head. Remember that copyright isn’t property, we only artificially ‘make it like’ property via copyright laws.
So arguments such as ‘but I can’t exploit my property for profit due to infringement’ are inherently wrong. What they mean is that they ‘can’t exploit their temporary monopoly for profit due to infringement’.
There is a big difference, particularly in the ‘temporary’ part. Fair use is a limitation on the temporary artificial right to the monopoly, it isn’t a right in and of itself.
At least, that’s my take on things.
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Did you negotiate with Techdirt to determine if you were allowed to quote that paragraph?
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You spelt smiles wrong
Now you got me very curious. I want to know what site is claiming this, so I know to avoid it in the future. =P
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Did you negotiate with Techdirt to determine if you were allowed to quote that paragraph?
Game. Set. Match.
This reflects a misunderstanding of the nature of the financial relationship between universities and Access Copyright. You’re thinking of it as a business relationship such as between, say, a pub with a band stage and ASCAP, when really, Access Copyright goes from door to door in Canada saying “Nice university you have there. It’d be a shame if something were to happen to it.”
And most of the universities pay them off to avoid a lawsuit that would be expensive to defend even if the university eventually prevailed.
“I’m really not quite sure how to respond to such people, because explaining to them what fair use is seems to only make them more upset.”
you could point them here:
http://en.wikipedia.org/wiki/Fair_use
assuming, of course, that we’re still allowed to link to the most obvious place to start learning about anything.
I suggest billing them for link clicks.
Re:
Fair use is a right, but it’s a right to use someone else’s property.
What property? Does someone’s article disappear if I decide to quote it and comment on it? Was it taken from the person who wrote while I was busy quoting and commenting on it?
Fair use is a right that was meant to be a line in the sand on how far copyright could extend. It is meant to protect those areas of expression that use copyrighted work without infringing on the copyright owner’s right to control the copies of their work.
The problem with fair use is that the person exercising their fair use rights always runs the risk that his assessment of what use is fair may turn out to be incorrect.
That is partially correct. However, it is not for the copyright owner to determine what is fair. It is for the court to determine. In this case, the copyright owner feels he should be the final say in what is a fair use of his work. But he is absolutely wrong on that part. He has the right to petition the court to uphold his interpretation, but it is the court’s job to have the final word.
You don’t have to negotiate, but doing so makes sense since having a license is better than not having one. It’s riskier to claim fair use later than it is to negotiate a license up front.
It may be slightly risky, if you are moving into uncharted territory. However, the act of quoting other articles to comment on them or the issues discussed therein is pretty solidly ruled to be fair use. It is already trodden ground and the only risk in doing so is the risk of running into people who have no clue what fair use is or what the courts have said on the matter.
On the other hand, there are areas where the waters are a bit more murky, such as using copyrighted music in videos. Here your arguments may be valid as music licensing is pretty common. However, there may still be fair use rights if you are not playing the whole song and are commenting on it, such as for a music review.
Fair use is not black and white. It is a legal grey area that gets whiter or darker as the courts add precedence to the legal arena. As the courts take on fair use cases and provide rulings on the matter, what is clearly fair use and what is clearly not fair use become easier for the lay person to determine.
Re:
By which method one sets a precedent. Are you sure that is a precedent you want to set? See the Righthaven piece where an entire article was used, and found to be fair use. No, one should not negotiate, and they should file suit in return for malicious prosecution if sued for fair use.
Then, I sure do wish lawyers were cheape…er a better value.
Part of the Plan
Don’t be so sure.
Part of the Plan
Put the book in a toaster, that should get your point across.
Re:
Unless the property is in the public domain then it belongs to every single person in the world. That’s a funny kind of property that belongs to every single person in the world.
Is there any other kind of property that behaves in the same way?
Re:
How about:
“Digitial thingies are like a string of ones and zeros”?
.
.
.
Best I’ve got.
Re:
> I used this analogy above, but I think it is similar to
> public access to beach-front property. Sure, you
> could go and ask every home-owner where you are
> allowed to walk, but that just gives them incentive to
> build a fence into the ocean.
At least we don’t have to worry about that in California. The state owns the beaches and as much as all those rich and powerful people in Malibu might like to keep you off “their” beach, they have no legal right to do so, and they certainly can’t build any fencing on the beach at all.
Doesn’t stop them from trying, though. I was walking the beach in Malibu with my girlfriend about a year ago and some movie producer or actor was having a party at his beach house (tables set up on the sand, etc.). There were hired goons deployed on both sides who were stopping the little people from crossing through what the homeowner deemed to be “his” beach and walking past his privileged guests.
I completely ignored the goon who kept telling me to stop as we approached and when he walked over and tried to put hands on me, I politely showed him my badge, explained the law about the beaches being public, and told him if he touched me, he’d be placed under arrest for assault on a police officer and transported down to central lockup. The look on his face was priceless– like someone pissed in his Cheerios– but he backed off quickly.
Part of the Plan
Send over a fireman team from Fahrenheit 451 to the authors book signing. That should really get your point across.
balance of rights
People are forgetting that copyright was about establishing appropriate balance of rights.
Fair use speaks to how individual and corporate rights intersect and what’s fair. If I buy a toaster legitimately, can I alter it? Can I re-sell it?
These days with standards and FRAND cases, it seems you don’t even have the right to plug your legally obtained toaster in the wall!
The whole system of patents and copyrights is hopelessly broken.
Re:
Did you negotiate with Techdirt to determine if you were allowed to quote that paragraph?
I know Mike claims that everything he publishes is public domain. I’m not convinced that that’s so, though, because he hasn’t explicitly abandoned his rights in this particular article, for example. But regardless, even if it is copyrighted, it’s not infringement for me to quote him in my response. I’m not concerned about it because I know my rights. But sometimes it’s not as clear, and it does make sense to get permission just to be safe. Depends on your risk tolerance really. The chances of Mike suing me for quoting him in the comments for the purpose of commenting on what he said is as close to zero as you’ll ever get. As much as he hates me, he would never sue me for quoting him in the comments. Cute, but not exactly comparable to some other less clear cases of fair use.
Re:
Unless the property is in the public domain then it belongs to every single person in the world. That’s a funny kind of property that belongs to every single person in the world.
If it’s in the public domain, no one owns it.
Fair isn't the right word
Unless you happen to be talking to Libya about their beachfront property and who own the ocean in the Gulf of Sidra, during the years between 1973 – 1989.
Sounds like the person Mike was referring to had drawn his own “Line of Death” in the “Fair Use / Fair Dealing” definition, and I don’t think Mike (even if he wanted to) was going to send in a Naval Task Force to get his point across.
Re:
Then it’s not property.
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Isn’t the public domain “domain of the public” and therefor OWNED by the public at large? At least one scholar thinks so, James Boyle, likening public domain to public property, and therefor, owned collectively by the public, not owned by “no one.”
Of course thats not the only definition you could probably find, but I believe this is the argument being made.
Concering copyrights, public domain is the right for anyone to use the material. That too, to me, sounds like its owned by the public. If it was owned by no one, no one would have a right to use it as they don’t have any ownership of it. I believe it also makes more sense that it is owned by all, and not no one, because if no one owned it, it could be claimed by one person and then removed from the public domain. When it is owned by all, it cannot be removed from the public domain.
Re:
It’s exactly comparable to the second case mentioned in this article, in which a guy got pissy because a bit of his article was quoted. As you say, anyone who knows their rights won’t be concerned about that.
The first situation doesn’t make sense for a different reason, that being that, while it does make sense to license things that aren’t clearly fair dealing, the term “fair dealing” doesn’t belong anywhere near such a license. It’s either fair dealing or a license, but both is nonsensical.
Re:
Boy, all this sure is confusing. Well, it’s a good thing we’ve got the lawyers dealing with this stuff.
They never make anything confusing.
Re:
So basically your stance is that unless you are a lawyer (or a wannabe lawyer) you should get permission first. Gotcha. Trying to line up your clients already AJ?
You realize that this makes no sense whatsoever in a lot of real life circumstances. For example, in a critiquing situation – who is going to give permission to have their blog post picked apart point by point by an opponent of their views? Pretty much no one.
I am certainly grateful that you are not someone in a position of authority. Your lack of vision beyond the letter of the law is a bit constraining.
Re:
So…your interpretation of what was fair use, when you quoted that paragraph, was that you felt safe and sure that Mike won’t sue you. You therefore felt you didn’t need to negotiate.
Then why the hell did you argue for people to negotiate before quoting?
Don’t you get it? Like all the other trolls who frequent Techdirt, you preach “Do as I say, not as I do”.
Just think about it, would you? Of what a world where everyone asks permission before quoting is like? Take…high school kids writing essays on a popular English novel for class. In one class you could have 30 kids. They have to ask permission to quote. That’s 30 kids. In one class. In one school. Multiply that for the millions of kids around the world who are also studying that same novel and also writing essays that require quotes.
Now imagine you’re the author of that famous English novel. Every day you get millions of requests to negotiate to quote. Do you want to chain authors to their email inbox, to reply to these requests 24/7?
Man…that’s the problem with you trolls. You don’t think critically. You don’t think to yourselves “What would happen if what I argued came to pass?”
RIAA and MPAA
You can blame the RIAA and the MPAA for all the propaganda they’ve put out. Just like they don’t acknowledge legal uses of file sharing, this guy apparently doesn’t fair use of his writings.
Re:
Despite the (intentionally misleading) name, intellectual property is not property, not even in the law.
Re:
Intellectual propety: all in the mind.
Re:
1) “You don’t have to negotiate, but doing so makes sense since having a license is better than not having one.”
Negotiating every instance of fair use makes no sense. It would effectively stop the creation of knowledge. Should I have negotiated a fair use agreement with you to quote part of your comment? That would be idiotic.
2) Classifying various semi-random permutations of human thought as property is an extremely bad idea, as is demonstrated on a pretty much daily basis.
3) You tend to limit yourself to analysis of what the law is currently. A lot of this discussion is regarding the law being fundamentally wrong.
Part of the Plan
If it’s a good quality toaster I might scan it and fire it through my 3D printer!!!
Re:
Can we use parables?
Fair isn't the right word
I don’t think this guy’s confusion has anything to do with confusion between physical property and IP. It really is just that (1) he is not aware that fair use is a legal doctrine and (2) he’s treating fair in the colloquial / literal sense of the word.
I’m not arguing he’s legally right — just pointing out why he responded the way he did. Look at where he complains that Mike’s definition didn’t meet his own definition of fair use. That’s a ridiculous statement to make if you think fair use is a legal term — there’s only one LEGAL definition, and it’s written down in Section 107 of the Copyright Act! But if you’re thinking in colloquial terms, then of course there are multiple definitions of fair. Apple thinks $2 is a fair price to pay to download a TV show. Others may disagree.
Nor do I think this guy, based on what Mike wrote, is really concerned about keeping up appearances or such. He seems more peeved about the lack of negotiation — again, something that matters if you’re concerned about “fairness” in the generic sense of the word, but irrelevant for copyright.
If you want to educate people about how copyright works, you have to understand where they’re coming form.
Fair isn't the right word
Or you could just point them to the actual law
http://www.law.cornell.edu/uscode/text/17/107
“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
Fair isn't the right word
Yeah, I’m not sure that would work. Then people would just argue about whether the use was in the ocean or on the property — e.g. they might argue that paraphrasing is “ocean” but direct quotation is “property”. Also, insert all those caveats about physical property metaphors.
Much easier, I think, to get straight to the point: This is free speech. Or, copyright law doesn’t prohibit small amounts of copying for commentary and academic uses.
Fair isn't the right word
That’s what I meant by saying “Section 107” as opposed to “fair use”. Not a fan of pointing to the actual text though — I think people could misread it and assume there’s some sort of hidden “fair price” term in there.
Accidental troll is accidental
Looks like I accidentally trolled there a little bit in comment 1. Was meaning to point out how dumb it was to treat IP like acutal P, but it was very early and my brain wasn’t on yet. good thing others picked up on how silly that toaster example was for me though!
Re:
One thing often missing in the discussion of music and copyright is that what people almost always use as background on YouTube is a particular performance of a song who may or may not be the songwriter. As both can be subject to copyright this does confuse things a bit if you follow AverageJoe’s advice and negotiate with someone. Just who might that someone be?
If the songwriter is under contract with the same label as the performers then, I guess, you’d negotiate with the label. Who will, of course, tell you to pound sand as they don’t recognize such things ass fair use/fair dealing. If the composer is licensing the work through, say, CAPAC then you’d negotiate with them where you’d get the same answer as the label would give you for much the same reasons. Naturally the band may object to the use as it’s their arrangement of the song and their specific performance you’re using so you’d have to negotiate with them too. As you can see the list gets long quite quickly.
Great work for someone hoping to be called to the bar soon.
As the act establishing copyright in the UK specifically mentions “education” as the motivation for the act and the US Constitution says it’s for the promotion of science and the useful arts it’s fairly easy to read into both that some form of fair use/fair dealing was antipated and allowed for, at least in the broadest sense. Neither makes any claim about a guarantor of income to the rights holder at all and neither would have anticipated the incredible period of time that a copyright is now in effect. (Notice that I didn’t say creator of the work as that person, for one reason or another, is often not the rights holder.)
Yes, claims of fair use/fair dealing may be risky but there are volumes of case law defining what it is and where and why it’s appropriate. The rights holder doesn’t get to say “I don’t like it” and that’s that. It just doesn’t work like that.
As for it being property like a toaster the sooner we get rid of that notion the better. It isn’t. It’s an incentive and a control over who can copy the entire work. It ain’t a toaster or a lawn mower or a clock radio!
Song lyrics
I recently had a story on a fanfiction site taken down without explanation. I wrote a number of times asking why only to be ignored. Finally, I emailed a copy of the story and they objected to my use of the word “Bitch” in the title and the song lyrics I had in the story. I researched Fair Use and the advise from the US Copyright office said “when in doubt, get permission”. If you can’t, then don’t use it. The use-case for Fair Use would require a judge and jury to decide, according to this site. This from
http://www.copyright.gov/fls/fl102.html
So, I trimmed the song down to 4 lines rather than the whole song. The site seemed to accept that. I took out “bitch” in the title.
So Mike, where did you get your guidelines for Fair Use. When someone won’t accept them, do you say “Talk to my lawyer” and leave it at that?