Overreaching copyright: an old problem getting bigger every day

An interesting piece from the Electronic Frontier Foundation about how the "content industry" (a nicely disparaging name for them, unless that is the first word is an adjective - but they are clearly discontent, or perhaps they are malcontents) can use the DMCA as a tool of censorship, by banging out takedown notices with no regard for fair use. They can get stuff that offends them taken off-line for quite a long time - well, in internet terms, in which time moves more rapidly than usual, a very long time, effectively for ever in some cases. It shows how important exceptions are to the copyright system, to prevent over-reaching or the sort of absolutism of which I and many others have written before. And the US notion of "fair use" is so much wider than our "fair dealing" exceptions!

Fair dealing as a user's right

In this fascinating post on his blog, Ariel Katz of the University of Toronto explains a number of facts about the fair dealing "exception" which have been lost to sight in the century since the Copyright Act 1911 received Royal Assent - on 16 December, a milestone that I was too preoccupied with other stuff to notice. I'll have to be more alert for the centenary of the 1956 Act.

I have been musing on intellectual property rights and corresponding obligations since at least yesterday, after something the IPKat said, and Ariel Katz's piece fits very neatly with that. Fair dealing as a user's right, not a mere exception to the owner's rights. This is how US and UK copyright laws came to diverge, then: this is the difference, exiguous as it might be, between fair dealing and fair use.

And what an excellent title for the piece.

Fair use? Don't confuse matters!

An article in the Independent this morning (available here) challenges received wisdom about the Hargreaves Review's job. Coverage of the Review has given the impression that it was set up to foist fair use on us, whereas it seems that not all of the small businesses that the government is trying to encourage - by reforming copyright law and designating the area around my firm's office as a centre for all things digital - it hardly qualifies as Silicon Valley, and Silicon Roundabout doesn't have quite the right ring to it. "East London Tech City" somehow doesn't sound like a desirable destination. Just plain Hoxton or Shoreditch seems to have quite enough kudos nowadays.

Anyway, when the PM announced the new initiative (in the old Trumans brewery in Brick Lane) he remarked that Google couldn't have contemplated starting their business in the UK because of the copyright laws. Strange, because they aren't exactly beyond the reach of UK copyright law anyway. Or any other country's copyright law. But they are so big, perhaps, that it's not want the law says that matters, more the way Google want to deal with it. Which might be the same as saying that by constantly challenging existing copyright laws Google is keeping up the momentum of reform.

All this talk about reusing other people's work depresses me. If it's so like someone else's work that there might be a copyright problem, it should be discouraged. People can create their own stuff that tips its hat to others' works, but even parody and caricature is possible without running the risk of copyright infringement - indeed, it's better for it, surely. If the copyright owner feels he or she has a claim for infringement, that might indicate that the rules about infringement need attention, not that we should carve out a huge copyright-free "fair use" area. Perhaps the Court of Justice's Infopaq judgment, raising the originality test to the heights of "author's own intellectual creation", will bring about the necessary changes.

Which isn't to say that the present exceptions can be left alone. They are too vague and not well-enough understood (as I noted a while ago in connection with Ben Goldacre's problems with LBC): they give the absolutists too much power. Which brings me to the point in the Independent's story that really caught my eye: a business set  up to help academics share and manage research papers online, which has problems with universities owning copyright. It seems to me there's a very simple solution there: these universities are, in this country at least, substantially funded out of the public purse, and I believe the same is true of other countries too - even in the US many universities are public ones. By what right do they claim to be entitled to exclusive rights in the work for which the taxpayer has paid? The same paradox in the field of Crown copyright was addressed some years ago - the minister responsible for it being David Clark, whose seat in Parliament I once tried to take from him and came closer than he probably expected - and if universities' copyright is a problem now, let's do something about it. Stop at least one group of absolutists!