Posted on behalf of the Free Expression Policy Project:
Will Fair Use Survive? Free Expression in the Age of Copyright Control from the Free Expression Policy Project at the Brennan Center for Justice, NYU School of Law
“Fair use” is a crucial part of our copyright system. It allows any of us to quote and reproduce parts — or sometimes all — of copyrighted works, if the use advances creativity and democratic discussion. There are similar free expression safeguards in trademark law. Together, they assure that the owners of “intellectual property” cannot close down the free exchange of ideas. These safeguards in our copyright and trademark systems are at risk today. Threatening “cease and desist” letters cause many people to give up their fair use rights. Even more troublesome are “take-down” notices sent by copyright owners to Internet service providers, which pressure them to remove online speech without any court having ruled that it is illegal.
Additional hurdles to fair use come from the “clearance culture” in many creative industries, which assumes that almost no quote can be used without permission from the owner. Meanwhile, educational “fair use guidelines,” which are often narrower than fair use law, prevent many teachers from copying material for their classes. In late 2004, the Brennan Center for Justice began a research project to learn how well fair use and free expression are faring among artists, scholars, and others who make critical contributions to culture and democratic discourse. We conducted focus group discussions, telephone interviews, an online survey, and an analysis of more than 300 cease and desist and take-down letters that have been deposited with the “Chilling Effects” Clearinghouse. Our discussions with members of PEN American Center, Women Make Movies, the College Art Association, and the Location One Gallery yielded two common themes. The first was that artists and scholars have great interest in, and confusion about, fair use. The second was a need for community support and pro bono legal assistance in their dealings with publishers, distributors, and other cultural gatekeepers. Our analysis of 320 cease and desist and take-down letters from the Chilling Effects Web site indicated that more than 20% either stated weak copyright or trademark claims, or involved speech with a strong or at least reasonable free expression or fair use defense. Another 27% attacked material with possible free expression or fair use defenses. Thus, almost 50% of the letters had the potential to chill protected speech. The materials targeted by the letters ranged from criticism of a Scientology-like “planetary enlightenment” program to parodies of American Express and Mastercard. Our telephone interviewees included the creator of a parody New York Times corrections page, an editor at the Cape Cod Voice, and small entrepreneurs using such terms as “Pet Friendly” Travel or “Piggy Bank of America.” Five of them had strong or at least reasonable fair use or First Amendment defenses, and four had possible defenses.
Another seven received cease and desist or take-down letters with weak copyright and trademark claims. Yet nine of the 17 people we interviewed acquiesced in the copyright or trademark owners’ demands, or had their material removed because of take-down letters. 290 people filled out the online survey, expressing opinions about, and experiences with, copyright and fair use. Their stories ranged from an artist who made “Homeland Security” blankets to a fan fiction Web site that posted a story called “Gaelic Dreams” and received a cease and desist letter from the “Gaelic Dreams” import company. Numerous teachers and scholars expressed frustration with a clearance culture that locks images out of public view whenever an owner refuses permission or charges too high a price. What can be done to bolster fair use and free expression in the digital age? Our recommendations include creating a clearinghouse for information, including sample replies to cease and desist letters and take-down notices; a legal support network; outreach to Internet service providers to encourage help for those targeted by take-down letters; and changes in the law to reduce the cost of guessing wrong about fair use.
I certainly plan to comment on this report–but it may be a while before I read it. Meanwhile, Google’s Library Project might yield some clarification of fair use, if the cases go to trial–but that clarification could be good or bad.
If you care about fair use, I recommend that you read the report.