Ever photocopy an article for yourself, download a library e-book, rent a DVD, stream your favorite TV show or record digital programming of any kind to watch where and when you chose? Know it or not, you were benefitting from “fair use” and other key parts of our nation’s copyright laws. These critical provisions balance copyright owners’ otherwise monopoly rights to control almost every aspect of how their work is accessed, used, shared and creatively modified. This is Fair Use Week 2017, and there’s no better time to take time to look at where that balance came from, where it’s been and where it ought to be headed.
In 1996, I was privileged to represent libraries and their core commitment to public access to information as an advisor to the U.S. delegation that negotiated the World Intellectual Property Organization (aka, “WIPO”) Copyright Treaty, which paved the way for development of the modern internet. During Copyright Week 2017, it strikes me that there’s a critical lesson to be learned from the intense negotiations that produced that watershed document and our experience with the 1998 U.S. law adopted to implement it. It’s a principle we ignore at our social, cultural and economic peril.
Copyright “limitations and exceptions” don’t just fuel non-commercial pursuits. Entire industries, and our economy, are built on the balance at the core of American copyright law. None of today’s major internet companies – and their browsers, apps, programs, games and databases – would or could exist without them. Literally trillions of dollars of America’s GDP, and thousands of jobs, flow from fair use. That’s the power of balance.
Balance is what makes the American system of copyright distinctive. It stems from very specific language in the Constitution itself in which the Framers preface the “copyright clause” with its overarching social purpose: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Accordingly, when Congress passed the first major revision of modern copyright law in 1976 twenty years before the WIPO Treaty was concluded, it was careful to do more than just adopt monopoly rights allowing authors to exploit copyrighted works. Congress also codified limitations on and exceptions to those rights, including fair use, that American courts had defined over many years. In fact, robust exceptions to copyright rights are so important in our law that the Supreme Court has ruled twice over the years that, without them, the monopoly powers granted to copyright owners to control their works otherwise would be an unconstitutional restraint on free speech.
But our embrace of the critical importance of balance in copyright law wasn’t by any means universal in 1996. Other nations had different legal traditions. In addition, multi-national copyright-based industries saw the negotiations as a chance to establish highly restrictive rules of the road for a new, copyright-fueled digital economy. Their version of the ideal traffic code had little room for ideas like fair use so central to U.S. law and our Constitution.
With all of that hanging in the balance, libraries, internet service providers and our many other coalition partners lobbied hard to assure that the Treaty would ultimately permit signatory nations to preserve and modernize their limitations and exceptions, like fair use, for the digital age. The good news is that we and our delegation succeeded.
The other news, however, is that the Treaty also included language demanded by copyright industries. That article required signing nations to enact laws to deter copyright crooks from cutting through the digital fences, like encryption, put around copyrighted works to prevent their illegal access or use.
Regrettably, the legislation adopted in 1998 to implement the WIPO Treaty in the U.S. far exceeded what that clause ultimately required by establishing huge penalties for digital fence-cutting alone. Thus – even though a security researcher, student, sight-impaired person, literary critic or Silicon Valley startup has a fair use or other legal right to use material without the owners’ prior permission – they still could be subject to those huge fines for “circumventing” a digital fence even though they haven’t infringed copyright at all!
That’s not, I would suggest, how our nation’s founders likely would promote progress today.
The WIPO Treaty’s embrace of balance twenty years ago was hard-won, farsighted and fortunate for us all. As the new Congress considers a broad range of options for updating America’s copyright laws, there will be no better way to harness the full power of every cylinder in America’s creative engine than by recommitting itself to balance in our copyright law.
For our culture, our society, our economy that balance is everything.
Jim Neal is President-Elect of the American Library Association and University Librarian Emeritus at Columbia University. Follow him @jimneal
The views expressed by this author are their own and are not the views of The Hill.