Copyright, fair use and the advance of culture

The problem with a lot of the debate about copyright is that it becomes polarised. It’s “big media” v the “little guy”. It’s “closed copyright, a barrier to innovation” v “open internet, cultural advancement and freedom of expression”. It’s bad guy, good guy.

It’s also not unusual to read that the absence of a “fair use” doctrine in Europe and elsewhere acts as a break on creativity and a barrier to innovation. No doubt I could be accused of doing the same thing when I write that copyright is a Darwinian species, capable of adapting to the network. However, if we are going to move into a more nuanced debate, I think it’s worth making four basic points.

Idea v expression

This is an important distinction. Copyright does not protect ideas, and ideas are the currency of intellectual creativity.

The World Intellectual Property Organisation (WIPO) administers the Berne Convention, which underpins the international copyright framework. There are 167 contracting parties, including USA, China, EU member states, Asia-Pac countries and many more.

Article 2 of WIPO’s Copyright Treaty states that: “Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” A recent illustration of this distinction was the decision of the UK’s Court of Appeal in SAS Institute Inc v World Programming Limited, heard in November 2013. The case was brought by the software company against a competitor. In short, the court re-affirmed that copyright did not protect the SAS software manual because it described the way the SAS software worked. It contained compilations of formulae, keywords, comments etc. which were, in effect, descriptions of functionality. They were on the “idea” side of the line and therefore not protected. Only the expression of an idea is protected.

To be sure, this was a case about computer software and not a novel, but the principle is the same. It is only the expression of the author’s intellectual creation which is protected, so no-one is prevented from taking the underlying ideas.

Insubstantial parts are not protected

It’s a basic part of all national copyright laws that the taking of an insubstantial part of a work is not an infringement at all. There are lots of examples of case law applying both qualitative and quantitative tests to this but the principle is an important one.

Fair use is not unique

“Fair use” is a flexible doctrine in US copyright law. And much is written about the “transformative use” element of the fair use defence. I am not knocking fair use but the balance between the exclusive rights given by copyright and the public interest is also reflected in the so-called “3 step test” in the Berne Convention which underpins most national copyright laws.

The Berne Convention is legalistic and of course pre-internet. But it does prescribe a boundary between exclusive rights on the one hand and permitted uses on the other, where copyright works can be used under exceptions. That is, “… in certain, special cases, which do not conflict with a normal exploitation of the work; and do not unreasonably prejudice the legitimate interests of right holders”.

So that does give national copyright laws an opportunity to allow a wide variety of re-uses by private individuals and public institutions for a whole range of “public interest” uses.

Licences can be part of the solution

A lot of valid criticisms are made about licensing, although things are improving rapidly as collecting societies increase the range of licences they offer and “direct to customer/consumer” online offerings continue to grow.

That said, getting a copyright licence can still be a slow, expensive and frustrating process. That’s where technology has a role. Consumers would be frustrated if they put their card in a bank ATM to get some cash, and they got a message back saying “We’ll check and get back to you” or didn’t respond at all.

That’s where technology has a role to play. Getting licensing from the filing cabinet onto the network, through machine readable identifiers, rights expressions and licences takes time, financial investment and cross-industry collaboration. And more time.

That brings me to the really important point. This is too important to all of us in economic, cultural and social terms to indulge in a good guy, bad guy debate. The beneficiaries of a machine-powered copyright framework are all of us. From individual authors, photographers, composers, illustrators to producers and distributors who add value through to you and me as consumer-citizen.

We owe it to ourselves to have a nuanced, mature discussion about this.

Laurence Kaye is a partner at Shoosmiths LLP and leads their Publishing and Digital Media team. He is copyright adviser to the European Publishers Council and has been actively involved on recent Directives.

This article is based on a recent post on his blog.


Twitter @laurencekaye.