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An Introduction to Copyright and Fair Use in the United States
From: University of Michigan
| By:
James Hilton |
EDITOR'S INTRODUCTION |
The Internet has raised many conflicts over copyright that throw into relief questions of ownership--who owns what works and who can use them under what circumstances? Yet a close look at the definition of copyright and its history reveals that the stakes today are larger than an individual's ability to download a piece of music. Copyright is about negotiating between the public good and private property, between freedom of speech and copyrighted speech.
James Hilton, associate provost and professor of psychology at the University of Michigan, provides a refreshing and lively introduction to the key issues of copyright. He dispels some commonly held myths and explains the great gains in copyright protection over the last decades and its implications. In the following edited transcript of Hilton's discussion, he also raises the question of whether fair use is the last bulwark for the original intention of copyright--to promote the progress of science and the useful arts. |
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| James Hilton explains why we have copyright laws. | |
 or the last five years, I've been persecuted by copyright. I haven't been sued, but it seems in every domain that I find myself, there's a copyright or intellectual property question. |
Questions confront you at every turn in the world of education now. When I teach, I use lots of images and videos in my classes. Can I put those images and videos up on the Web so that students can go back after the lecture and review? Technically, there's no problem doing it, but there are huge copyright questions. Do I have the permission to put the images and the material on the Web? |
When I find material for my lectures, along the way I see lots of stuff that my colleagues, who teach related classes, might want to use. Can I create a library of that material so that they can use it? Can I make a photocopy and send it to somebody? Can I digitize it and send it as an email attachment? Or if I'm at home or find a piece of music that speaks to the human condition, and I want to share that with somebody, I can play it for them if they're at my house. But, can I make a tape of that song and let them borrow it, and can I make an electronic version of it, and can I put it up on a website? |
It seems that wherever I go the question isn't the technological question, "Can you do it?" but the legal question. What are we allowed to do, and what are we not allowed to do? |
Copyright questions are all around us. It's a growth industry. One of the things that I tell people is that copyright is like a trip to the dentist. The bad news is that you are going to have to go frequently. The good news is that there are fascinating and fairly fundamental questions about personal liberty, what direction society is going, and where we place values, that are all wrapped up in copyright. |
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| James Hilton outlines some misconceptions about copyright. | |
Copyright basics
If there's a single principle that I believe about copyright, it's that the stronger your belief that your intuitions are right, the higher the probability that you're dead wrong. Copyright is incredibly counterintuitive. |
Just to give a couple of examples, the default assumption that I think most people walk around with is that the only things that are protected by copyright are things that have the copyright symbol. In fact, virtually everything that you see is protected by copyright. Anything that has any creative element and that is expressed in a tangible medium--meaning that it's printed in a book, saved to a computer, written down even on a legal pad--is likely protected by copyright. |
For example, if you're surfing the Web and find images and Web pages but don't see copyright notices, the tendency is to believe that those things are not protected by copyright. But, in fact, virtually every Web page is protected by copyright. The law grants copyright protection to it. The person who owns the copyright may not be interested in protecting and exerting their rights, but the law grants that protection. You do not have to register with the copyright office in order to get protection. |
A second myth or misconception about copyright is most people think that copyright is about protecting ideas. But, in fact, copyright doesn't protect ideas. Copyright protects the expression of those ideas. |
The example I always think about is a Hollywood movie. A lot of Hollywood movies may share similar plots: boy meets girl, they fall in love, they go through troubled times, in the end everything works out, and there are some funny moments along the way. Copyright doesn't protect those ideas; it protects the expression of the ideas. You can have different versions of an idea and as long as the expressions are different, copyright provides different protections. |
Indeed, copyright was invented in order to promote people sharing ideas. Thomas Jefferson, the key framer of the Constitution, compared ideas to a candle flame. He said what we really want is a scheme that would encourage people to share their ideas because, like sharing a candle, if I have an idea and share that idea with you, you can light your candle from that idea and you can take it somewhere else. I still have the idea and you now have the idea, and we can both make use of it. |
Probably the third, and from my perspective the biggest, misconception about copyright is why copyrights exists. If you ask 10 people to tell you why copyright exists, at least 9 out of 10 people will give you some variation of the argument that copyright exists in order to protect the author's intellectual property. In fact, that's not the primary purpose of copyright. The primary purpose of copyright is to promote--the term comes out of the Constitution--to promote progress in the science and useful arts. It's to help society advance. |
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| James Hilton discusses congress and copyright. | |
The Constitutional origins of copyright
Article One in the Constitution says that Congress shall have the power to promote the progress of science and the useful arts by securing, for limited times, to authors and inventors the exclusive rights to their respective writings and discoveries. In Article One of the Constitution, the Congress is given all kinds of power--the power to tax, the power to declare war, and the power to grant copyrights. Interestingly, copyright is probably the only power that Congress was granted that comes with the explanation of why the power is given. |
One way to think of copyright is that its short-term goal is to give authors monopolistic control. And, in fact, one of the things that ought to make you think about whether copyright is just like every other property right out there is that it is monopolistic control. Authors have exclusive rights over their works. Congress gives authors short-term monopolistic control because it was seen as a way of providing incentives for authors to create new works. |
The long-term goal, though, is actually to get those ideas into the public to allow people to share them, to be able to read what the great minds are thinking and then to have their own thoughts and their own creations. So although it grants short-term monopolistic control, the primary purpose of copyright, and the reason that monopoly is given, is because that control will, in fact, facilitate and promote progress in the science and useful arts. |
One of my favorite quotes that highlights this aspect is from a Supreme Court ruling--the writer of this particular ruling was Justice Sandra Day O'Connor--and it was a court case involving whether or not the White Pages in a telephone book could be copyrighted. If you think about the White Pages from a copyright perspective, the White Pages are certainly an expression of something: an address is maybe a kind of idea. But if you think about their organization, it's not very creative. They are organized alphabetically. The phone book is a collection of facts that somebody has worked very hard to collect, but it's just a collection of facts. And remember, copyright protects expressions, but it doesn't protect ideas, and by extension it doesn't protect facts. |
Justice O'Connor, writing for the majority, said, "The primary objective of copyright is not to reward the labor of authors, but to promote progress of the science and useful arts. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by the work. This result is neither unfair nor unfortunate, it's the means by which copyright advances progress of science and the arts." What you have is a clear articulation of copyright as a scheme that tries to balance public goods with the author and creator's intellectual property rights. Arguably, it's been remarkably successful over the last 200 years. |
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| James Hilton describes the extension of copyright laws. | |
Two centuries of copyright
Copyright is basically a scheme that tries to protect the property rights of the author, but it also tries to protect the public good. Over the last 200 years there has been a steady shift in the balance between the promotion of the public good and the protection of property, and that has emerged mostly in the way copyright law has changed. |
We have seen a vast expansion in the types of works that are protected. Two hundred years ago, it is was the unusual thing that was protected. The only things that were granted protection were published maps, charts, and books. Today, virtually everything is protected. Anything in a fixed, tangible medium is protected. You don't have to want to publish it and you don't have to register the copyright, but it's protected from the moment it's created. That is a huge change. |
The scope of protection has also changed. Originally protection was mostly about protecting against the printing or copying of works. Now copyright protection extends to include performances of those works, public displays of those works, electronic versions of those works, and, perhaps most importantly, the creation of derivatives. So even if you only take a piece of a copyrighted work and use it in a new work, you could be infringing copyright because it could be seen as a derivative of that work. |
The other dramatic change has been the extension of the term of copyright protection. In 1790, when the first copyright statute came out, copyright protection extended for 14 years and was renewable for another 14 years, provided the author was still alive. So the copyright term could be a total of 28 years. Every time Congress deals with copyright legislation, they inevitably extend the term of copyright, which alters in fairly fundamental ways the scheme that was originally embodied in copyright, which was, again, this notion that you granted an author exclusive rights but for a limited time. |
The current copyright term is life of the author plus 70 years. And arguably, if the copyright law continues to progress as it has been progressing over the last 200 years, works that are created right now will never pass into the public domain. |
Remember that copyright was originally an incentive for people to publish, so that ideas would get out in the public eye and, in a predictable fashion, pass into what is called the public domain. The public domain is different from the public eye. The public eye just means that a work is visible and that you can use the ideas. Public domain means that there is no longer copyright protection on a work. So if I find a book from 1720, and I want to publish it today, I can do that because the book is in the public domain. |
Over the last 200 years, the balance has shifted. All of the moves have been in the direction of protecting property, expanding what's protected, expanding the scope of the protection, and expanding the amount of time that it's protected. |
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| James Hilton describes the origin of fair use. | |
The 1976 Copyright Act and the birth of fair use
In 1976, Congress recognized that the balance between the author's property rights and the public good was in danger of shifting too far towards the author's property rights, given the expansion of scope and protection. |
The 1976 Copyright Act introduced fair use limitations on the rights of authors. In essence, the fair use provision says that authors have monopolistic control over their works, unless someone wants to use the work to further progress in the science and the arts, unless it promotes learning, knowledge, or public good. In other words, the idea here is that copyright exists primarily to promote progress in science and arts. By having monopolistic control, authors have an economic incentive to create. But then the Act reserves from the monopoly uses that others might make of the works that would be consistent with the purpose for which copyright exists, that is, promoting progress in science and the arts. |
Now, in fact, the details of fair use are complicated and always subject to interpretation. The only way that you can know, for sure, whether the use of a work is a fair use is to go to court and have a judge rule that it is fair or unfair. There are some uses that we could all agree would clearly be an unfair use. If you decide to copy an entire work and post it to a publicly accessible website, that would clearly be an unfair use even if you said, "Oh, but gee, I thought this would promote progress in the science and useful arts." And, clearly, it would be a fair use to take a sentence from some copyrighted work and include it in the literary criticism. But between those fairly stark differences, there is what a friend of mine refers to as "the vast unknown where you exist only at the mercy of a judge." So, in some ways, fair use is complicated and terrifying. Often people want clarity. They want to know what is a fair use and what is not a fair use. |
But even though it is ambiguous and complicated, fair use is vital. Without fair use, we would live in a world where authors, creators or copyright entrepreneurs could lock information up. (While the recording industry says that it is protecting musicians, it's usually the recording industry that owns the copyright to music works, so you can think about the recording industry as "copyright entrepreneurs." There is a whole industry out there now where people acquire the copyrights to other people's works and then redistribute them.) |
It is fair use that allows you to quote someone while criticizing them even if they don't want you to. It is fair use that allows you to create a parody of someone's work, even if they don't want you to. It is fair use that allows you to quote somebody when giving a speech, that allows you to quote them for the purposes of reporting news, even if they don't want you to. And it is fair use that allows you to make multiple copies of a work for scholarly research and teaching. |
Indeed, there is a clear relationship between the right to free speech and copyright, which are both constitutional principles. One way to think about copyright is to see it as a limitation on free speech. I can say anything that I want to say in public as long as you don't own the copyright to it. Fair use, again, allows us to adjudicate that tension between free speech principles and copyright principles. |
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| James Hilton examines fair use in the digital age. | |
Three threats to fair use
Fair use is currently under several different kinds of threats. First, it's under threat from a lobby and a culture that increasingly see copyright as being exclusively about protecting property rights and loses sight of the fact that copyright also exists to promote culture, to promote progress and to promote learning. It is a problem and a threat that if you ask 10 people why copyright exists, no one will say "in order to promote learning," unless there's a librarian in the crowd. One of the concerns I have is that as Congress looks at its next steps to address this balance, there is really nobody at the table who represents the public. Publishers have a strong lobby, artists have a strong lobby, but the public has no organized lobby. It is a real threat, that if we lose sight of the public good aspect of copyright, that we risk losing it all. |
The second threat is digital technology, because digital technology blurs the distinction between having access to information and actually copying information. In an analog world, I can go to the library, get access to the book, and read the book. I can do lots of things with that book. I can make a completely separate decision about whether or not to walk that book over to a photocopier and make a copy of some portion of the book. |
In the digital world, the only way you can actually access information is to make a copy of it. In order to see something from the Internet on your computer screen, there has to be a copy of it in RAM--your computer is making a copy of the information locally. Now copyright law can certainly deal with copies that are just made in the service of access, but this copy that you now have is a perfect digital copy. So if you're the owner of copyrighted material, and even though the law may say that it is just an incidental copy, you now know there's a real, perfect copy of your material out there. If you want to protect your material, you might decide to limit access to it to make sure that only people who have licensed access to the material are going to be able to get to it. |
If you do that, it's an ironic twist over what copyright law was about. Copyright was about promoting exposure, promoting access, providing encouragements for people to publish things so that their ideas would be out in public. And now technology makes it so that people who own the copyrights are worried about doing exactly that. |
So increasingly, their decision is to limit access, and, in fact, that's the third threat. Increasingly, people who own content want to not sell you the content. When you purchase a book, you can do anything that you want with that physical work. You can mark it up, you can rip pages out that offend you, you can give it to a friend, or you can sell the book to a friend. One of the things that happens in the world of copyright is that the copyright owner is actually only entitled to the first sale of the work. After that, there is no assumption that they will get more revenue from it. |
Increasingly, in the digital world, people do not want to actually sell you information, they want to license access to information, essentially to rent you the information. The problem is that licensing moves you out of the world of copyright and the rules that govern it and into the rules of contracts. Essentially, a license is a contract between you and the person who owns the content that says that if you will meet these conditions, then you can have access to the work. The problem is that the person who owns the content can set whatever conditions they want. You can risk all kinds of things in a license that you normally would not expect when you buy something. So, for example, the owner could make a condition of the license the fact that you would not make copies or share the work with anybody else, or perhaps that you wouldn't criticize the work. You can see the work, but, in advance, you have to agree not to criticize it, or not to reverse engineer it, or not to do a whole lot of other things that again, people normally assume that they are going to be able to do under copyright law. Suddenly, in licenses, all that can be at risk. Those are three fairly dramatic threats to fair use. |
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| James Hilton offers his concluding thoughts. | |
Prospects forward
One of the questions that naturally follows is "What should we do?" I think the most important thing that we should do is to proactively pursue our fair use rights. I believe that if we don't use fair use, we will surely lose it. Pursuing your fair use rights means that you will probably have to have a little education and to learn a little bit about fair use. Not every use, including every educational use, is going to be a fair use. To use the earlier example, if I decide that it would be of educational benefit to society to take all of the textbooks on my shelf, digitize them, and put them up on the World Wide Web for everybody to see and profit from, that is clearly not going to be a fair use. It is going to require some education and probably some zones of uncomfort where you don't know whether something is a fair use or not. |
But I think it's worth that investment, because fair use stands between us and a world where expressions are shared and built upon freely and a world where every expression is proprietary and can be potentially locked up. Fair use, in my eyes, is the only thing that stands between us and a locked-up world. |
I believe that the framers of the Constitution got it right when they created an admittedly awkward but necessary balance between the public good and the property rights of the author. We need to embrace that awkwardness. |
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