Fair Use

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The (American) fair use doctrine allows the use of copyrighted material without a license from the copyright owner.

It therefore qualifies as a form of Open Content.


Definition

"Fair use is a doctrine in U.S. law that permits limited use of copyrighted material without obtaining the permission of the copyright holder, such as use for scholarship or review. Fair use is delineated in Section 107 of the U.S. Copyright Code." (http://en.wikipedia.org/wiki/Fair_use)


Conditions

From http://informationweek.com/news/showArticle.jhtml?articleID=201805939:

"According to the U.S. Copyright Office, use of copyrighted material may be considered fair use based on four criteria: "the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work."

However, assuming a use qualifies as fair use remains a gamble. The distinction between fair use and infringement isn't easily defined"


Discussion

Economic Value of Fair Use

Information Week summarizes the findings of a report by the by Computer and Communications Industry Association:

"Fair use exceptions to U.S. copyright laws account for more than $4.5 trillion in annual revenue for the United States, according to a report issued on Wednesday by the Computer and Communications Industry Association.

"Much of the unprecedented economic growth of the past 10 years can actually be credited to the doctrine of fair use, as the Internet itself depends on the ability to use content in a limited and nonlicensed manner," CCIA president and CEO Ed Black said in a statement. "To stay on the edge of innovation and productivity, we must keep fair use as one of the cornerstones for creativity, innovation, and, as today's study indicates, an engine for growth for our country."

By one measure -- "value added," which the report defines as "an industry's gross output minus its purchased intermediate inputs" -- the fair use economy is greater than the copyright economy.

Recent studies indicate that the value added to the U.S. economy by copyright industries amounts to $1.3 trillion, said Black. The value added to the U.S. economy by the fair use amounts to $2.2 trillion.

The fair use economy's "value added" is thus almost 70% larger than that of the copyright industries.

The $4.5 trillion in annual revenue attributable to fair use represents a 31% increase since 2002, according to the report, which claims that fair use industries are responsible for 18% of U.S. economic growth and almost 11 million American jobs." (http://informationweek.com/news/showArticle.jhtml?articleID=201805939)

Policy Implications

The CCIA'S "aim in releasing this report is to encourage lawmakers to recognize that copyright legislation requires balance. "What it points out is there's an important chunk of the economy that's impacted by what happens to copyright law," he said. "It points out to some extent ... that when you focus on only one side when making policy changes and don't recognize that, you're going to have a collateral impact on the other side."

"Copyright was created as a functional tool to promote creativity, innovation, and economic activity," said Black. "It should be measured by that standard, not by some moral rights or abstract measure of property rights." (http://informationweek.com/news/showArticle.jhtml?articleID=201805939)


Critique of the report

By Open Knowledge activist Rufus Pollock [1]:

"while perhaps interesting as propaganda these figures have zero ‘intellectual’ credibility — and , in fact, little basis in the study itself. For all the study actually does is label a whole bunch of industries as ‘fair-use’ related and then sum up their contribution to GDP and Value-Added. Leaving aside their extremely questionable classification of companies as ‘fair-use related’ the basic problem is that the study makes no effort to actually work out whether fair-use was essential to these businesses, or, more specifically, what difference the absence of fair-use would have meant to their profitability or success. Just because a company makes some use of the fair-use exceptions doesn’t mean you can suddenly ascribe its full value to the existence of those exceptions!

Thus there is absolutely no way this study tells us what the ‘contribution of fair-use’ to the economy actually is and certainly no way to make specific statements such as the “value added to the U.S. economy by fair use amounts to $2.2 trillion”. The study’s authors no doubt were aware of this, hence that clever elision in the above quote between industries “benefiting from fair-use” and the “fair-use economy”, with the latter phrase implying much a much more direct dependence on the benefits of fair-use than the former.

Of course it is also true that just as much propagandizing (base on equally poor “research”) is done by those on the other side of the debate (see for example my analysis of the BSA’s piracy claims) but I am deeply sceptical that two wrongs make a right. What we need in debates over IP is not more propaganda but more evidence." (http://www.rufuspollock.org/archives/221)

More Information

CCIA summary at http://www.ccianet.org/artmanager/publish/news/First-Ever_Economic_Study_Calculates_Dollar_Value_of.shtml