Fair Use and Public Domain

In my fantasy life, I'm a copyright attorney. Not someone paid big bucks by the large media conglomerates to protect their intellectual property, but a young, spunky attorney on a one-person crusade to ensure the free flow of information. I love public domain, especially. Public domain is this idea that, after a certain amount of time, a piece of intellectual property is no longer the creator's, but becomes the property of everyone. The copyright runs out and it becomes fair game. What this means is that you can write your own sequel to Huckleberry Finn. You can sample O For a Thousand Tongues to Sing on your rap album. You can write an avant garde novel in which Walt Whitman appears and speaks only the words of his poems. Everything from about 1927 back to the dawn of writing is yours to do with what you will, the only barrier being that if you try to pass off Troilus and Cressida as your own, someone will notice and you will be publicly ridiculed (or, in the case of Borges's Pierre Menard, your version of Don Quixote, identical to the original, will somehow be marked as exactly yours). So, it used to be that things would regularly pass out of copyright and enter the public domain. As much fun as this was for plagiarists and experimental fiction writers, the reality of it was usually just that publishers could make the books widely available for little money (think the Dover Editions) because they don't have to pay royalties. People can post things in the public domain up on the web to make them widely available, and libraries can make electronic editions without seeking permission from anyone in order to preserve texts. Right now, though, nothing is entering the public domain. Thanks to Disney, who is terrified of their characters losing copyright protection, the period of copyright protection keeps getting longer and longer. For the most part, this sucks. Especially with older items, people aren't sure what's gone into the public domain and what hasn't, and we end up with these ludicrous situations where something is still protected by copyright but it's impossible to tell who the copyright holder is after all this time, and so the work ends up not being reprinted or repressed or made available to people who want it. [The only time this doesn't suck is in the case of Claud Johnson, who made a million dollars off of his dad's music long after everyone in the recording industry thought it was safe to violate dear old Bob's copyright left and right (Led Zeppelin, I'm looking at you) because he was dead, dead, dead. Ha, ha, ha, you thieving bastards.] Some librarians and others have gotten together and proposed a solution in which, if someone wants to keep their work copyright protected after, say, 50 years, they should have to come forward and pay some minimal amount--like $1--in order to do so. Otherwise the work would enter the public domain. Obviously, I think this is a good idea. But, also, obviously, there's not a great outpouring of support on the part of the big media conglomerates for this, because they control most of the rights under copyright protection. Which is why the other love of my life, a more fragile and tender love, is for "Fair Use." Title 17, chapter 1, section 107 of the U.S. code outlines when you may use other's material without their consent and without asking their permission. Read it and marvel at the beauty of this little piece of law.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

How big a deal is this? This little bit of law is what lets me quote from letters over at Salon and articles out of the New York Times or the Nashville Scene. It lets me share with you snippets of song lyrics and lines of poetry. It lets all my scholarly friends quote others in their articles and books. The only drawback to this legislation is that it doesn't provide any clear guidelines about how much is "fair use" and at what point something is infringing on the rights-holder's rights. Music publishers and record companies have been notoriously bad in this regard, making the reproduction of any lyrics so cost-prohibitive that many music critics don't actually quote the songs they're talking about. This is simply unacceptable. The rights of the public to discuss intelligently the intellectual production of our society outweigh the corporation's right to get paid, and we have to bravely demand that right. Since there are no clear guidelines for what constitutes fair use--for instance, is it fair use if I only quote one stanza of a song? What if that song is "Wild Thing" by the Troggs. I've "given away" half the song then.--we tend to go by what's common practice. This means that if we ask permission for everything, we're setting the dangerous precedent that we believe we have to ask for permission for everything. I believe it's better to err on the side of excess. I think we have to be responsible about it. Only quote as much as you need in order to make your point and keep in mind that they're serious about the "effect on the market" part. But on the other hand, we can't be so "reasonable" that we seek permission for everything and loose, for all practical purposes, "fair use" as well.