Will Fair Use Survive? Free Expression in the Age of Copyright Control
By Marjorie Heins and Tricia Beckles
Are increasingly heavy assertions of control by copyright and trademark owners smothering fair use and free expression? The product of more than a year of research, Will Fair Use Survive? paints a striking picture of an intellectual property system that is perilously out of balance.
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Fair use is a crucial exception to "intellectual property" controls - it allows users to publish, distribute, or reproduce copyrighted or trademarked material without permission, for certain purposes. But extensive research, including statistical analysis and scores of firsthand stories from artists, writers, bloggers, and others, shows that many producers of creative works are wary of claiming fair use for fear of getting sued. The result is a serious chilling effect on creative expression and democratic discussion.
Several factors must be considered in deciding whether a use of copyrighted material is "fair." Among the most important are:
Examples of fair use are criticism, commentary, news reporting, scholarship, and "multiple copies for classroom use."
The report suggests the need for strengthening fair use so that it can be an effective tool for anyone who contributes to culture and democratic discourse. The report finds:
The report recommends: creating a clearinghouse for information, including sample replies to cease and desist and "take down" letters; outreach to Internet service providers who are instructed by companies to take down sites with material they claim as copyright-protected; changes in the law to reduce the penalty for guessing wrong about fair use; and the creation of a national pro bono legal support network.
The report has already been praised by writers and filmmakers including Gordon Quinn, maker of Hoop Dreams, who writes:
The Brennan Center report on fair use clearly identifies a critical issue – fair use is a terribly important problem facing filmmakers, and it needs to be addressed. ... This report is part of a wider movement to educate people about fair use, and it’s going to help us users organize and re-assert the right to fair use.