July 25, 2013 | By Parker Higgins

"Fair Use Creep," and Other Copyright Bogeymen, Appear in Congress

The Congressional subcommittee that addresses copyright heard testimony today from five witnesses about the role of "the copyright sector" in the U.S. economy. As we described yesterday, there were some glaring omissions in the witness list: no representatives of the public interest, no librarians or archivists, none of the innumerable creators who depend on fair use or a balanced copyright regime. The resulting testimony and question-and-answer session were about what you'd expect from a panel made up of the executive director of a copyright expansion group and four representatives from the content industry.

Most striking was the repeated assertion that copyright should be understood primarily as a mechanism of control. Testimony from Sandra Aistars, the director of the Copyright Alliance, was explicit on this point. That’s funny, because we thought it was supposed to be a mechanism to promote new creativity. Ironically enough, Aistars also claims that copyright “is about choice” and “freedom.” Choice and freedom for some people, that is: under her construction of copyright, a grant of copyright is designed to concentrate all of the choice with the copyright owners, at the expense of the public. 

As for the invocation of “freedom,” it appears that some of us as are more free than others. Too often, draconian copyright law has given copyright owners the power to limit others’ freedom of speech. We’ve seen countless examples of expansive copyright chilling legitimate speech, of shameful takedowns of fair uses, and opportunistic uses of copyright mechanisms to silence embarrassing or politically disagreeable media.

Then we have the equally ill-conceived “real life examples” of copyright in action, such as Aistars' nod to civil rights era photographer Matt Herron. Aistars claims copyright law is what enables Herron to keep his collection intact for history and future generations. Irony alert: Expansive copyright has actually inhibited the transmission of our shared history, from the "missing 20th century" of books that aren't available thanks to copyright, to the clearance battles that limited access to the widely praised civil rights documentary "Eyes on the Prize".

Another theme of the hearing was the danger of fair use. On multiple occasions, the expansion of fair use, or "fair use creep," was trotted out as a bogeyman undermining the business models that have traditionally worked for the content industry. Of course, fair use is both legal and critical for copyright to co-exist with real freedom of speech, especially given that copyright can cover works that are many decades old and part of the fabric of history. Moreover, fair use has been under assault for decades, thanks to laws like Section 1201 of the DMCA, which makes it illegal to bypass a technical protection measure under most circumstances even if your conduct is an otherwise lawful fair use.

The witnesses today held up copyright in Congress today as a source of revenue and control for multiple industries that must be protected by the government at all costs. The voice of the public, the one that wasn't testifying today, objects. And when one Representative asked the panel today what steps legislators should take next in the effort to reform copyright, that voice would have responded with a plea for evidence-based policy and reality-based debate.


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