Thursday, February 07, 2008

Defining 'Fair Use'

Tim Wu:
[I]t is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brooks’ “Spaceballs” as a substitute for “Star Wars”; a book review is no substitute for reading “The Naked and the Dead.” They are complements to the original work, not substitutes, and that makes all the difference.

This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to “Die Hard.” On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.

We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.


  1. But why's it obvious that e-texts aren't fair use? How does my institutional access to JSTOR make my downloading of journal articles more fair than if some Joe uploads the files? The difference doesn't seem obvious to me...

  2. Hmmm..
    I am inclined to think that those that pirate videos do a outright service to humanity.

    They force the cost of goods much closer to their marginal cost and do so in a highly efficient (e.g. environmentally friendly) manner.
    they also help countries like NZ by helping with the balance of payments and redistribute income, because selling information otherwise is particularly good at concentrating wealth. (I can go into why that is an issue if one wants)

    At some point piracy could become a problem - but I think in general we need a lot more piracy than we have now.

    So yeah - pirate away - but you should give credit of course.


  3. Yeah, I have pirate sympathies, but that's a further issue. The point is that even the most stringent copyrightists ought to recognize mash-ups and the like as 'fair use' or secondary authorship.

    Jared - neither case you discuss is a matter of 'fair use' as traditionally understood (i.e. an exception to copyright, to enable secondary works such as parody, reviews, etc., without needing the copyright holder's permission).

    Your institutional access to JSTOR means that the copyright holders have granted permission for you to access and download the works. So no 'fair use' exception is required. As for a pirated e-text, if you want to allow that, what you're suggesting is not a limited exception to copyright, but its complete abandonment.


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