Editor’s Note: This arti­cle first appeared at http://blog.tommorris.org/. The image is copy­righted by simsim2212, but is used under the aus­pi­cious of fair use.

Cre­ative Com­mons has launched the Cre­ative Com­mons 4.0 process, where they hope to pro­duce a fourth ver­sion of the Cre­ative Com­mons licenses. I have a pro­posal that I think could make Cre­ative Com­mons even more use­ful than they already are, namely using CC licenses to enforce a min­i­mum base­line of fair use. It’s very sim­ple: we sim­ply make it so that every CC license includes extra clauses that not only spec­ify that the Cre­ative Com­mons license does not infringe on fair use (the licenses already include such a clause) but they also guar­an­tee a min­i­mum base­line of fair use.

Fair use dif­fers by coun­try, but the nice thing is that the CC license could encode in the license those fair use rights while also allow­ing them to be enforced by statute.

In the United States, there is a broad class of fair use excep­tions are described by 17 U.S.C. § 107 as follows:

the fair use of a copy­righted work, includ­ing such use by repro­duc­tion in copies or phonorecords or by any other means spec­i­fied by that sec­tion, for pur­poses such as crit­i­cism, com­ment, news report­ing, teach­ing (includ­ing mul­ti­ple copies for class­room use), schol­ar­ship, or research, is not an infringe­ment of copyright

Those are exam­ples given, but the U.S. law works by defin­ing four cri­te­ria of fair use, and then say­ing that a work is fair use if it meets those four cri­te­ria, leav­ing it open in the future for peo­ple for reusers to make a case to the courts if chal­lenged that they are pur­su­ing a new form of fair use.

The United King­dom doesn’t have fair use in the same way. Instead it has a vari­ety of “fair deal­ing” excep­tions. There is a com­mon law fair deal­ing defence, and a num­ber of statu­tory fair deal­ing defences. Unlike the U.S., there is no gen­eral class of excep­tions, just a spe­cific list of excep­tions, often with a stack of sec­ondary leg­is­la­tion spec­i­fy­ing exactly how that fair deal­ing could take place.

Accord­ing to Wikipedia, there is also fair use in other coun­tries, specif­i­cally Canada (which has a fair deal­ing style lim­ited excep­tions rule), Israel (which is broadly U.S. style), Poland and South Korea. Fair deal­ing is, of course, used in Com­mon­wealth coun­tries like Aus­tralia and New Zealand.

Now, before I get on to the sub­stan­tive pro­posal, I’ll say some­thing hope­fully uncon­tentious: fair use is good, fair use is con­sis­tent with Cre­ative Com­mons val­ues and it is some­thing we should try and pro­mote. Of course, in an ideal world, peo­ple would sim­ply use pub­lic domain/CC Zero or CC BY or BY-SA or some­thing, which would essen­tially pro­vide a much stronger ver­sion of fair use/fair deal­ing for most pur­poses. So, broadly, fair use is good, and the copy­left­ish, free cul­ture move­ment who thinks things like Cre­ative Com­mons and Wiki­me­dia and free soft­ware and so on are pretty cool are gen­er­ally in favour of more of it. This seems uncon­tentious, and hope­fully my pro­posal will seem equally uncontentious.

Given that we like fair use, CC 4.0 could pro­mote fair use by guar­an­tee­ing fair use inter­na­tion­ally. Just as the main terms of the CC license are applic­a­ble inter­na­tion­ally, instead of sim­ply spec­i­fy­ing that the CC license doesn’t inter­fere with or super­sede one’s com­mon law or statu­tory fair use or fair deal­ing rights (because, you know, how could it?), the CC licenses could guar­an­tee some uncon­tentious and shared sub­set of fair use/fair deal­ing rights as part of the license. This means that even in coun­tries where fair use is not guar­an­teed by the laws of that ter­ri­tory, one can still engage in those fair use rights even if they are not guar­an­teed by the main terms of the license (namely, share-alike, no-derivs, non-commercial).

So, you have a reuser in the fic­tional coun­try of Exam­plia. He finds a par­tic­u­larly intrigu­ing sci­en­tific arti­cle online under the CC BY-NC license and wants to write a blog post in response that quotes some small chunks for the pur­poses of crit­i­cism or review but has a small amount of adver­tis­ing on his blog (the ques­tion of non-commercial licens­ing rears its ugly head).

If he were in the United King­dom, fair deal­ing would pro­tect his right to copy mate­r­ial for the pur­poses of review under the Copy­right, Designs and Patents Act 1988, § 30(1). But Exam­plia does not have such an excep­tion built in to their copy­right laws. Thank­fully, he is doing it with a CC 4.0 license that includes my mag­i­cal fair use base­line require­ment, which guar­an­tees fair use rights very sim­i­lar to those granted by the UK and USA to reusers inter­na­tion­ally, and so he is able to go ahead.

Guar­an­tee­ing inter­na­tional fair use rights even when the law doesn’t seems like a no brainer in prin­ci­ple. But, of course, I am not a lawyer, and there may be legal rea­sons why it is a bad idea. (Sadly, there usu­ally is.) There is also the ques­tion of what exactly would be cov­ered. This is, of course, ripe for debate. I think the exist­ing UK and US laws guide us, and stick­ing fairly con­ser­v­a­tively to the sort of things they allow means that peo­ple will find this pro­posal as uncon­tentious as I think it is. I’d sug­gest the following:

  • non-commercial study (this is guar­an­teed by all the CC licenses already except per­haps no-derivs licenses)
  • quo­ta­tion for the pur­pose of news reporting
  • crit­i­cism and review
  • par­ody of the work, and per­haps use of the work to par­ody or satire other things
  • for­mat shifting
  • time shift­ing
  • edu­ca­tional use within government-operated or accred­ited schools, col­leges and universities

All of these except the last one are pretty well-covered already by the exist­ing fair use and fair deal­ing laws, so I should jus­tify my inclu­sion of the last entry. This is because of the very com­mon use case of some­one find­ing a use­ful paper in a sci­en­tific jour­nal and want­ing to dis­trib­ute it to stu­dents in class. This is about as fun­da­men­tally straight for­ward a case of fair use/fair deal­ing in terms of intu­itive under­stand­ing as I can think of, but buts up against the non-commercial clauses of some CC licenses because tech­ni­cally a stu­dent pays tuition fees to be at uni­ver­sity, and the lec­turer is paid to give the class, so dis­tri­b­u­tion of edu­ca­tional mate­ri­als in that sit­u­a­tion is tech­ni­cally a com­mer­cial use of those mate­ri­als. Although the require­ment that the schools be government-operated or accred­ited is rather prob­lem­atic, that’s sim­ply because that is a con­ve­nient way of get­ting most of the real schools and uni­ver­si­ties while exclud­ing diploma mills, the shadier side of for-profit col­leges (all those lan­guage col­leges you see down Oxford Street in Lon­don!) and so on. Of course, this is just a very rough pro­posal, so it would be up to peo­ple who actu­ally know about law to fig­ure out how to imple­ment this.

If any of these are legally prob­lem­atic, we sim­ply leave them out. Pro­vid­ing a base­line of fair use rights inter­na­tion­ally is sim­ply a very sim­ple response to the way that the copy­right extrem­ists are doing the same thing with DRM and all the other crap that they’ve been push­ing through WIPO and ACTA etc. Cre­ative Com­mons say­ing through the licenses that wher­ever the reuse occurs, some­thing like fair use is a fun­da­men­tal require­ment of an equi­table and fair copy­right sys­tem might be a small way to rebal­ance that debate.

2 thoughts on “Fair Use

  1. I think this sounds like a great idea, par­tic­u­larly the last three points on your list: format/time shift­ing and edu­ca­tional use. Let’s hope this makes it into CC 4.0

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