Fair Use Has Its Place, But We Can Only Depend On It So Much
I remember once hearing someone say that if free speech is the right to buy a printing press, then fair use is the right to hire a lawyer.
It is just recently that the tables have started to turn against this cynical observation. The conversation around fair use and the Internet has benefited greatly by communities made possible by the web itself. Through sites like ChillingEffects.org, ordinary people and not lawyers, are beginning to fight for their rights to transform and build upon culture.
Everyone agrees that there is a place for fair use in a modern copyright regime, but the question is, to what extent are particular uses fair? If a mother video records her child dancing to a Prince song, does she have the right to distribute that video on YouTube? Does that video count as fair use? If not, is reasonable to say she is committing copyright infringement?
It is important to understand that while fair use has potential to protect some uses (particularly ones that are transformative, like parody or satire), it does not protect enough uses. As the web reaches farther places on the globe, the right to translate works and remix them is increasingly obvious. The need for copyright reform is clear, but there must also be work outside the push to broaden fair use, and I fervantly Creative Commons is part of this mission. This is also why a free culture is important -- being able to translate, share, build upon, and remix cultural works has been a crucial component of our society. We should not let maximalist copyright regimes distract us from this goal.
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Did you know that the Founding Fathers of the USA were ahead of their time. When they first started dealing with 'intellectual property' laws they set the time on a Patent to be 20 years (which has not changed!) and set the limitation on Copyright to be 7 years which they later repealed to be 14 years.
The fact is ever since 1978, nothing has been added to the Public Domain that wasn't already there as a result of being created earlier than 1923. These copyright extension acts have been blatantly lobbied for by big media companies because a certain cartoon mouse would have slipped into the public domain and was unofficially called the Mickey Mouse Copyright Act or something which extended copyright to 70 years. Then Life and then finally Life + 70 years. In the US there is *86 YEARS* of culture locked away behind copyrights.
Imagine if Patents had a Life + 70 years or 120 years term limit. Technical progress would grind to a halt. The same is happening to culture. With a stagnant Public Domain, Cultural progress is slowly grinding to a halt.
To put it in perspective a furniture maker makes a very good stool and sells it. Does that mean he has the right to live off that one work for the rest of his life? Should everyone that sits on that stool have to pay a licensing fee for use of the stool? That is effectively what content producers wish with music, movies and other content they provide. I say if they cant come up with something new once every 14 years they should probably be out of business rather than forcing us to perpetuate an old and failing business model.
NOTE: I'm not 100% for fair use (more like 75% for it), but I figure anything thats over 7-14 years old should have diminished protection and/or strengthened protection from the Fair Use Defense.