Why this Copyright Blogger likes Fair Use and Fair Dealing

I make no bones about it. I am an unabashed supporter of a strong copyright regime to protect the work of creators and to ensure fairness to those who work in the creative economy ecosystem. Robust copyright protection is really a matter of fairness, allowing individual creators—songwriters, indie film makers, photographers, authors, artists, game designers, et j’en passe—to protect their work, to monetize it if they wish to, and to earn a living. Playing fair is also about allowing the industries that invest in content to be able to earn the kind of return on investment they need in order to raise capital, support production, hire writers, marketers, technicians, lawyers, butchers, bakers and candlestick makers, and bring the results to market.

It is also about stopping those who do not play fair; those who build business models on the back of someone else’s investment in creativity without making any contribution of their own–other than devising new means of delivery–and/or who outright steal the work of others because they can, or to profit from it. But robust copyright is not about blocking technology or progress; the concepts of fundamental copyright fairness do not change because access to content is more widely available or can be delivered digitally. Nor is it about blocking freedom of expression or access to knowledge. The exceptions and limitations on copyright established by the doctrine of fair use or through fair dealing legislation are the guarantor of this. They constitute the flip side of the copyright coin. As such they are integral to copyright and play a key role in making copyright work and be relevant to the digital age.

This principle is well illustrated in my own role as a blogger. I like to write about issues that illustrate various dimensions of copyright from an international perspective. My aim is to provide an informative insight on issues and copyright-related stories in what is, hopefully, a readable and entertaining format. I necessarily take a non-legal perspective since am not a trained lawyer. This probably has both advantages and disadvantages. A disadvantage is that I have to be careful not to tread into the minefield of legal opinion and precedent; the advantage is that I hope I can bring an “informed layman’s” perspective to my blogging. (Some would say a “common sense” perspective but that would be unfair to my copyright colleagues in the legal profession.)

To produce these regular blogs, I try to cast a wide net and survey issues and developments from a range of sources to identify angles on copyright that will be informative and enjoyable to read. Sometimes they are anecdotal or human interest stories, (the Monkey Selfie case and its impact on copyright), sometimes new anti-piracy threats and developments (RATS, Kodi Boxes), sometimes commentary on legal or legislative developments (Google v Equustek), sometimes it is to debate or challenge interpretations that I think are just plain wrong (Mind the Gap ), and others to celebrate the success of creation enabled by copyright. In doing so, I depend on, build on, “transform” and interpret content created by others.

Blogging itself is a child of the wide access to information provided by the Internet. In using this new technology, legitimate bloggers strive to stay within the four corners of the law as well as to respect the rights of other content creators when it comes to citing, accessing, linking to, and otherwise using existing content. We take inspiration from the work and expressions of ideas of others, but go on to create something new, further contributing to the corpus of knowledge, analysis and interpretation. The protection provided through fair dealing legislation in Canada and elsewhere, or the fair use precedents and guidelines in the US, provide the essential cornerstone for what I and others do. Without it we could not pursue our own creative efforts.

Fair dealing and fair use rules set out user’s rights, and set limits on the extent of copyright protection. But think about it; copyright creators themselves are among the most prolific of users. Fair dealing and fair use is not a zero-sum game. Far from it.

So for those who claim that copyright protection and fair dealing/fair use are antithetical concepts at the opposite ends of the spectrum, think again. Fair dealing, and protection against unauthorized use, are the yin and the yang of copyright. You can’t have one without the other.

© Hugh Stephens, 2018. All Rights Reserved.