Content Creators Criticize Courts' Expanding Definition of Fair Use
Content-side stakeholders took to Capitol Hill Monday to decry federal courts' expansion of the fair use doctrine, saying during a Copyright Alliance/News Media Alliance event that the over-application of fair use to include the transposing of content to other forms of media erodes copyright protections. The criticism of fair use doctrine precedent involves recent cases like Authors Guild v. Google (see 1604180027) and Oracle v. Google (see 1702130043) in which they believe too much emphasis was placed on examining whether a claimed fair use was “transformative.”
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The Copyright Alliance and the content creators the group represents “do not oppose fair use”; they're concerned that courts' interpretation of the existing fair use doctrine has “become unbalanced,” said CEO Keith Kupferschmid. That imbalance had more effect as the business model for publishers and other companies changed, said Authors Guild Executive Director Mary Rasenberger. “When we first brought the Google Books case in 2009, there were very few people who would have thought that scanning millions of books” would be considered a fair use, she said. NMA CEO David Chavern suggested the effects of poor fair use precedent are “often remote” for consumers. But "if you don't protect what journalists do, then you are implicitly supporting garbage," he said.
Courts' overreliance on accounting for whether a claimed fair use is transformative has “forgotten” about other prongs in the fair use test, including a use's effect on a particular market, said News Corp. Deputy General Counsel Jim Marcovitz. That imbalance eventually could lead to a “truly suboptimal” level of news content quality if news organizations aren't able to employ the needed number of journalists and photographers, he said. Google Books and several other important fair use rulings involved Google, but all search engines share some of the blame for the shift in what's considered fair use, said visual journalist John Harrington. The effects of search engines' image aggregation can be mitigated if all parties can agree on an automated solution in which search engines include an embedded watermark in all images they post, Harrington said.
Rasenberger and others also backed changes to Digital Millennium Copyright Act Section 512 notice-and-takedown framework and safe harbor provisions to mitigate the expanded fair use precedent. Congress should shift 512 away from notice and takedown to “notice and stay down” since the existing notice-and-takedown framework is ineffective, Rasenberger said. The onus under the section is entirely “on the creators,” said Getty Images General Counsel Yoko Miyashita. Content creators and the tech sector have sparred over whether Congress needs to make changes to 512, restating their entrenched positions in comments on the Copyright Office's ongoing study of the statute (see 1702210059 and 1702220070).