What 'fair use' is and how copyright is choking the internet (E70)
Aug 14, 2023
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This podcast explores fair use and copyright challenges faced by online content creators. It delves into the absurdity of musical ownership, the differences between patents and copyright, and the concept of fair use in various types of content. The speaker also shares personal experiences with copyright claims on YouTube and appeals for new fair use legislation.
The threat of spurious copyright challenges has made fair use a matter of popular concern.
Copyright disputes are typically resolved out of court, relying on industry self-regulation.
Determining fair use involves considering factors such as the purpose and character of the use, the nature of the copyrighted work, and the effect on the potential market.
Deep dives
Copyright Law and Popular Concern
The podcast episode delves into the remarkable interest and concern people have shown in copyright law, particularly the fair use doctrine. It explores how the threat of spurious copyright challenges to online content has made fair use a matter of popular concern. The episode discusses how copyright disputes are typically resolved out of court, relying on industry self-regulation, and the impact of corporate policy, such as that of Google, on copyright disputes. It highlights the challenges faced by content creators trying to exercise their fair use rights and the prevalence of flagrant copyright violations on platforms like YouTube.
Different Intellectual Property Categories
The podcast provides a breakdown of the different categories of intellectual property, distinguishing copyright from patents, trademarks, and trade secrets. It explains that copyright protects the intangible expression or recording of ideas, such as poems, paintings, and movies, while patents protect inventions and trade secrets are valuable information kept secret by businesses. The episode clarifies that copyrights do not require registration or publication, as ownership is established upon creation, and highlights the distinction between creativity and commercial use in copyright law.
Understanding Fair Use
The podcast delves into the concept of fair use and its definition, emphasizing that fair use is not clearly defined by statutory or case law. It discusses the work of media scholar Pat Aufderheide in formulating prescriptive definitions of fair use and the challenges of self-regulation in copyright disputes. The episode explains that fair use typically favors creative and editorial works over commercial uses and explores the role of transformative works and education in fair use considerations. It also highlights the prevalence of copyright claims and the fear-driven compliance that often occurs, even when fair use could potentially defend the use of copyrighted content.
Fair use and its historical context
The concept of fair use has existed in the Anglo-American legal tradition for centuries and was eventually codified into US law in the Copyright Act of 1976. Fair use allows for certain unauthorized uses of copyrighted material under specific circumstances. Although the law does not explicitly define fair use, it identifies some types of unauthorized uses, such as criticism, comment, news reporting, and teaching, as potentially fair. Determining fair use involves considering four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for the copyrighted work.
The influence of market interference on fair use
One crucial factor in determining fair use is the effect of the use on the market value of the copyrighted work. If the unauthorized use does not interfere with the market for the original work, it has a strong argument for fair use. For instance, analyzing a song second by second or comparing two songs online for commentary purposes, even if using the entire song, may still be considered fair use if it does not replace the market for those songs. Additionally, fair use should be simplified and focused on questions of market replacement, empowering content creators to assert their rights comfortably. Credit and acknowledgement should also be addressed explicitly in fair use law, ensuring that proper attribution is given when using copyrighted material.
