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.