ArtsWatch: The False Fair Use Fight

Study of "fair use economy" misused to discourage shutting down rogue websites
July 18, 2011 -- 6:03 am PDT
By Philip Merrill /

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

On July 11 the Computer & Communications Industry Association released this year's updated "Fair Use In The U.S. Economy" study, estimating 2008 and 2009 revenues at $4.6 trillion. CCIA President/CEO Ed Black said, "We have long known that these limitations on IP regulations are important for social purposes — they enable news coverage, research, academic and educational use, criticism and commentary. But we've more recently started to discover that an immense amount of economic activity also depends on these limitations and exceptions." Both the Copyright Alliance and MPAA supported this side of CCIA's argument, but objected to its suggestion that this legitimate economic activity is endangered by S. 268, the PROTECT IP Act, which targets rogue websites that profit from criminal copyright infringement. Copyright Alliance Executive Director Sandra Aistars said, "Confusing fair use with criminal activities is a disservice to the important role fair use plays in copyright law. Efforts to enforce the intellectual property rights that support creators, innovators, patent holders, authors, and other jobs in our ideas-based economy should not be confused with attacks on fair use." The PROTECT IP Act is supported by The Recording Academy and is now pending a vote by the full Senate.

Consumer advocates Public Knowledge announced law student Patrick McKay as the winner of their fair use video contest on July 11. The contest was a reaction to April's "YouTube Copyright School" educational video, illustrating a need to balance YouTube's message of what should not be done with a countermessage of what users are allowed to do. McKay's winning "Fair Use School — The rest of the copyright story..." does a reasonable job of reviewing actual elements of fair use law, although his use of movie clips might not be considered setting a safe example for impressionable students. To build dramatic tension, the narration says users can get takedown videos restored and have strikes removed from their YouTube accounts "by using two secret weapons hidden deep within the darkest recesses of copyright law, which copyright holders and big companies like Google absolutely do not want you to know about. These are the twin weapons of fair use and [Digital Millennium Copyright Act] counternotices. These are the bane of copyright holders' existence as they restrict their ability to control what you do with their content and take away their right to censor your videos." These opinions stated as fact offer a good example of how comfortable some fair use proponents are with painting copyright owners as villains. Teachers use humor to make dry material palatable, but describing fair use as a secret weapon is unlikely to be the most constructive educational approach.

On July 13 the European Commission solicited comments due by Nov. 18 in response to a discussion paper regarding Internet distribution of audiovisual works. Issues include pan-European licensing/clearances, the scope of per use remuneration for multiple rightsholders, and special cases such as preservation institutions and people with disabilities. Although the phrases "copyright infringement" and "fair use" are not used in the discussion paper, this offers a chance to suggest constructive ways to support the public's ability to comment on copyright-protected movies and television. Internal Market Commissioner Michel Barnier said, "I want to ensure that Europeans can seize the opportunities offered by the Internet. It is important for me to hear the views of all stakeholders concerned — creators, performers, producers, distributors and consumers."

Consulted by the UK High Court, the European Court of Justice delivered an important ruling on Internet commerce and trademarks on July 12. Dealing with trademark infringement allegations made by cosmetics company L'Oréal against eBay, the court clarified that an online marketplace taking an active role in commercial-scale infringement will be considered liable in addition to the sellers of the goods. In the event an online marketplace has been made aware of trademark infringement on its site and fails to act, it will also be liable and national courts may grant injunctions to compel it to prevent such infringements. L'Oréal welcomed the verdict and an eBay spokesperson told Reuters it was already up to speed with the court's requirements as a result of improvements made over the last several years.


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