SIVACRACY.NET

Over at a New York Times Blog Sivacracy friend Tim Wu offers a straightforward and simple definition of fair use:

Tim Wu: Fair Use doctrine is creaking and groaning in the digital age, and it threatens to be surpassed by industry practice. There was once a well-understood line between what original and “secondary” authors were allowed to do. In the literary world this was the line between the original book on the one hand, and a book review or literary criticism on the other. But today things are much more confusing. Books begat films, character merchandising, giant fan guides, remix videos, fan art and other forms of secondary authorship that simply didn’t exist 100 years ago. These forms of authorship are in a gray zone; likely to fail the “four factor test” of fair use, but nonetheless largely tolerated by firms like NBC as a form of marketing. It is a sign of how ridiculous things are today that a copyright lawyer cannot give you a straight answer as to how much of Wikipedia is actually legal.

That’s why it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brooks’ “Spaceballs” as a substitute for “Star Wars”; a book review is no substitute for reading “The Naked and the Dead.” They are complements to the original work, not substitutes, and that makes all the difference.

This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to “Die Hard.” On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.

We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.

Bravo, Tim. I think this would work in a whole lot of cases, perhaps most cases in which we want to recognize the chains of culture.

I see two caveats to this general principle: copying for use in teaching and research (explicitly allowed in Sec. 107 as I read it); and the all-too-strong concept of "derivative rights." The tension between fair use and derivative rights (sequels, action figures, etc.) is one of the biggest problems with copyright today. Alas, the statute does not help the tension. It creates it. And the case law has not clarified it. All we can really know is that if you can afford a great lawyer (like Houghton Mifflin did with The Wind Done Gone), you can use fair use. If not, then fair use might as well not exist.