On Tuesday, the House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on “The Scope of Fair Use.” Fair use protects individuals using copyrighted material for things like education, journalism, criticism, etc. without a license. House members heard arguments for and against the current limitations on copyright protections, focusing on the fair use doctrine.
The only witness who strongly pushed for expanded fair use rights was Author Naomi Novik, who stressed the importance of fair use in the development of creativity, especially in the remix community. All innovation builds off the previous work of others. She argued licensing is not a viable alternative for creative entrepreneurs, as many do not have the resources or time. Licensing prevents users from changing the copyrighted material, which stifles innovative use. Ms. Novik urged Congress to make it easier for transformative artists to exercise their fair use rights, not limit them.
But Singer/Songwriter David Lowry disagreed, saying our copyright system and fair use laws are not broken, and do not require government intervention. Individuals in the remix community who don’t want to ask permission or buy a license to use copyrighted material do not make a compelling argument for expanded fair use.
Professor Peter Jaszi of the Washington College of Law, agreed that our copyright system is working. He presented a case that fair use is widely recognized by Congress and the Supreme Court, and it’s working well. The federal courts have done a great job in determining what is considered fair use, and individual users of copyrighted material have restrained themselves to only legitimate fair use purposes.
June Besek of Columbia Law School also acknowledged the courts’ central role in deciding fair use cases. However, she said Congress may have a place in alleviating some tension between copyright holders and those who are seeking expanded fair use rights. She suggested that Congress might separately address problems of mass digitalization, including whether or not authors should be compensated for publically beneficial uses of their works.
Kurt Wimmer, General Counsel for the Newspaper Association of America, took a similar stance to the majority of the witnesses in that current copyright law and fair use practices strike the right balance. The case-by-case analysis for alleged copyright infringements in court is designed to provide the incentives to create new works, but not burden social goals of education and information dissemination.