INTRODUCTION

Pursuant to constitutional mandate, the purpose of copyright law is to “promote the Progress of Science and the useful Arts.” The author is only a mechanism by which to advance cultural progress. Securing remuneration for authors is not an end goal of copyright law, but rather a means chosen to promote progress of art and science. Thus, while protection for authors is quite broad, it is not absolute. Fair use permits secondary use of copyrighted works without obtaining permission from, or paying royalties to, copyright owners. Fair use largely embodies First Amendment values and balances the desire to protect authors with the goal of advancing social benefit. See Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1263 (2001). Fair use, as it currently operates, however, often favors copyright protection at the expense of hindering free speech and cultural progress. Reinterpreting fair use’s four-factor test is necessary to bring fair use back into balance with copyright's goals and the First Amendment.

NARROWING THE SCOPE OF THE FOURTH FACTOR

The Fair Use test takes into account “the effect of the [secondary] use upon the potential market for or value of the copyrighted work.” Under this factor, "a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 450 (1984). Under this factor, it matters not whether a creator intends to exploit a particular market for the copyrighted work; if it is a potential market, the copyright owner has a monopoly over, and can deprive society of, that valuable market. See Castle Rock Entertainment, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132, 145 (1998). Therein lies one of the main problems. If creators have enough incentive to author original works despite intending not to explore certain markets, it means that secondary users’ ability to explore those markets will not alter the creators’ incentive to create the original works (i.e., the author's compensation). Since the author's incentive to create original works would be unharmed, the original works will still be created and secondary works will be allowed under fair use, thereby progressing science and the useful arts. Moreover, since remuneration for creators is not the main goal of copyright law, access to valuable secondary works should be paramount to the originating author’s proprietary rights and incentives in secondary works. The copyright owner's anti-dissemination motives should give way to creation of valuable secondary works.

NARROWING THE SCOPE OF THE RIGHT TO CONTROL CREATION OF DERIVATIVE WORKS

To avoid this change in the fourth factor, an author could simply say he intends to explore a secondary market. Thus, in order to effectively balance the scope of the fourth factor, we must narrow the scope of secondary markets available for copyright owners’ exploitation under § 106. For example, if we apply narrowing constructions to the derivative work right, the potential market for the copyrighted work becomes much narrower, and makes it easier for the fourth factor to balance in favor of finding fair use. Reducing the scope of exclusive rights granted to copyright owners weakens the functional monopoly owners have over production and dissemination of socially valuable works and weakens barriers to access, thereby promoting progress of science and the useful arts. Further, narrowing the derivative work right granted to copyright owners could increase competition. If secondary users are less inhibited from entering into the derivative market, more works could be produced and will compete with each other for the market’s demand. The higher quality, more socially valuable works, will capture such demand.

SHOULD THE FAIR USE DOCTRINE BE AN AFFIRMATIVE DEFENSE?

Another aspect of fair use tipping the balance in favor of copyright owners is the fact that fair use is an affirmative defense to infringement. Defendants bear the burden of proving that balancing the fair use factors favors finding Defendant’s infringement excused as fair use. See Campbell v. Acuff-Rose Music, Inc., 510 US 569, 590 (1994). While Plaintiffs bear the burden of proof to show actual infringement in the first place, the infringement analysis often does not account for social benefits of secondary works or free speech. For example, free speech elements of parodies and criticism, paradigmatic candidates for fair use protection, are not relevant until after establishing that such parodies and criticisms infringe copyright. Thus, once cases reach the fair use stage, there is a presumption of copyright infringement. The First Amendment states “Congress shall make no law . . . abridging the freedom of speech . . .” Thus, the First Amendment is superior to copyright law. In order for the First Amendment to be truly superior, it should be incumbent on plaintiffs to assert that copyright protection should operate to enjoin defendants’ uses, rather than defendants having to show that regardless of copyright protection, their uses should be excepted as fair. A shift of this burden would make it more costly for plaintiffs to bring lawsuits, possibly deterring plaintiffs from bringing lawsuits altogether, especially when the suit involves derivative markets which the plaintiff never intends to exploit. Less litigation and less copyright protection decreases costs of both access to works and creation of secondary works, advancing the goals of copyright protection and fair use.

CONCLUSION

While these are not the only changes one could lobby for in bringing fair use into balance with copyright’s stated goals and First Amendment protection, these changes would fundamentally alter the way the test applies in all fair use cases and could bring about significant positive change to copyright law. Such changes would allow for cheaper access to copyrighted works, a decrease of barriers of entry into secondary markets, and would foster creation of socially valuable works, without significantly inhibiting or discouraging creation of original works of authorship. These proposed changes to fair use would better progress science and the useful arts.

-- AustinKlar - 26 Nov 2011

Upon some further reflection, I see a potential problem with my idea of using whether or not someone intends to make use of a certain derivative market as an element of fair use. If two people have different intentions (Creator A wanting to make use of that derivative market, and Creator B not wanting to make use of that derivative market), then whether something is deemed fair use is plaintiff-specific. The standard presents an issue of clarity on part of future users of the copyrighted work. If I'm unsure, as a secondary user, whether or not my conduct falls under fair use because I'm unsure what the copyright owner intends to do in the derivative market, that could chill me from using the copyrighted work at all, and perhaps hinders the progress of science and the useful arts in that sense.

But, as Shyamkrishna Balganesh, professor at U Penn Law, points out in the Harvard Law Review, perhaps a useful standard could also be foreseeability. While he mainly focuses on foreseeability (an objective reasonable person standard similar to that in tort law, contract law, nuisance law, etc.) in infringement analysis rather than in the fair use analysis, an explicit foreseeability element could be beneficial. If, at the time a creator makes a work, a particular derivative market is so unforeseeable that control over that market through copyright could not possibly have been part of his incentive to create the work in the first place, then the defendant should not be liable for infringement by utilizing that derivative work.

But foreseeability analysis presents some problems of its own. Eventually a certain use becomes foreseeable so for certain works, created at certain times, a use might be wholly unforeseeable and therefore not covered under copyright, but that use might later become foreseeable and therefore covered by copyright. So for the same types of works, one work will not have the same protection as the other, since they were created at different times. For example, in 1960 the internet was not objectively foreseeable by the ordinary reasonable author. Thus, the ability to control the market for digitization of a book would not be part of that author's incentive to write the book. But, in 1985, the internet might be foreseeable, and digitization of the 1985 book would be a market that author could control. So for the exact same works, digitization will be covered in one instance and not the other. Whether something was foreseeable back when a work was written is not necessarily fathomable by the derivative user (and perhaps even courts for that matter). Copyright is supposed to last for life of the author plus 75 years. But with technology developing so rapidly, and unpredictable uses emerging within short time periods of creating a work, the foreseeability analysis could actually end up effectively abrogating copyright law's duration, rendering the 75 year after death of the author time-period almost meaningless.

-- AustinKlar - 06 Mar 2012

Austin,

Great idea on the article and you delved into the doctrine well. However, fair use is much more nuanced and complicated than what you have portrayed here. Several comments/suggestions: 1) Check the law on the fourth factor, esp. after the Supreme Court's Campbell v. Acuff-Rose decision. I remember the Second Circuit saying that the fourth factor is no longer as important as you are portraying it as. 2) I agree - we need to limit the scope of derivative works rights, but that's a 106 problem separate from fair use. What about limiting derivative rights based on categories of works, e.g. musical works as opposed to pictorial or literary works? Also, explore the possibility of adopting something from the blocking patents system in patent law. 3) The burden shift sounds good in theory but difficult procedurally and unlikely to be accepted. The DMCA takedown provisions has something similar but I don't see how placing the burden on plaintiffs, which I agree would limit copyright lawsuits, would work or not have the effect of unleashing too much unauthorized copying. Finally, the First Amendment protections are built into the copyright clause and you won't get much sympathy from the Supreme Court on separate First Amendment considerations.

What we do need is better guidance on how to apply the fair use test. Having four factors, each with its intricate nuances, and no sense of how exactly to balance them and approach it analytically, is the problem with fair use. It has troubled individuals and businesses, and courts when they need to decide them. Some guidance from the Supreme Court or even Congress would be helpful. Ultimately, the best solution I think would be for Congress to do a Copyright overhaul like they did with patents, but more comprehensively and in line with what copyright and fair use means in the 21st century.

-- ThomasHou - 05 Dec 2011

I agree 100% that we need better guidance on how to apply the fair use test. From what i've read, it appears that depending on the type of use at issue, certain factors will weigh into the balancing more than others, and in other types of uses, the other factors weigh more heavily. Fair use cases are very unpredictable because we don't know how the court is going to come down. So many reversals and then re-reversals occur in fair use cases on their way up to the USSC.

With regard to the campbell v. acuff decision, that case said the fourth factor wasn't important here because the issue was parody/criticism. The purpose of using the underlying work was a transformative purpose. That case held that because it was a transformative use, the commercial aspect of it weighed less in the balance. There is no "protectable derivative market for criticism" so there was not much regarding the 4th factor in that case. However, in other cases, the 4th factor does carry extreme weight and this is often the case because of the fact that the derivative market is extremely broad.

My discussion about the 106 derivative work right is certainly a 106 problem but the point was that by fixing 106, it will help to fix fair use and the balancing test. So it is a 106 problem, but it necessarily implicates the fair use analysis.

I will look into patent stuff. Ive never studied patents and know almost nothing about it (except from what i've read in your first paper on Bielski). Thank you for your thoughts

-- AustinKlar - 09 Dec 2011