Copyright Laws and the Gray Area of Fair Use

         

                Not long after the invention of the printing press in the 15^th century, came about the questioning of ownership of intellectual property and the implementation of its protection and as explained by Wikipedia giving credit where credit is due.  In England 1662, The Licensing Act catalyzed the beginning of centuries of reformed and reworked copyright laws.  The most similar laws regarding our current perception of copyright within the United States began in 1790, titled the U.S. Copyright Act.  This law protected intellectual property for 14 years from the time the title was recorded, as well as the option to extend the copyright another 14 years.  Any offenders were subjected to a fifty cent fine per illegally reproduced sheet.  Because of the ambiguity of the act purposely imposed by the creators, this law has been continually changed over the past two centuries and will continue to be open for adjustment.  The copyright time frames have extended to the life of the author plus fifty years, at first suggested by Mark Twain, with the addition of twenty years for anything before 1978, imposed by the Clinton administration. 

Though a simple enough concept widely accepted in the world today, under the surface there is a wide struggle among copyright scholars.  Cohen and Rosenzweig attest, along with many others, that it is up to Congress to protect the rights of the owners of intellectual property; however it is also imperative that society works towards the progression of science and the arts and to encourage learning.  Arguably, the copyrights laws infringe on this basic concept.

                             Just a few comics from http://mimiandeunice.com/category/law/

Thankfully, there is something called the “fair use” clause, where copyrighted material can be employed if it is either fact, or is utilized to formulate further ideas that prove to be new and useful.  But the idea of what is or isn’t fair use is highly subjective, and when placed up to the courts, is at the mercy of the judge’s perception of what is or isn’t fair use; a highly stressful-and costly-situation to be thrown into.
Enter the “Creative Commons”, a nonprofits response to copyright laws where authors chose to share their ideas either with or without stipulations.  As described by Stanford Law professor Lawrence Lessig, the creative commons are to administer the balance between the rights and the needs of society.  Not unlike many other contributors, Lessig suggests that there is equilibrium of the use of intellectual property that can help society advance while also protecting the rights of the owners.  Sharing of intellectual property promotes learning and continual contribution to the creative commons.

Along with the gray areas of fair use, are the questions related to “orphan works”, where the owner of copyrighted material cannot be located.  After William Savory’s jazz recordings of an array of notable artists were donated to the National Jazz Museum in Harlem, it was under a diligent eye that the actual owners of the recordings copyright could not be determined or located.  This resulted in a vast hole in the world of jazz music; so close to historical recordings, yet untouchable-or unlistenable-in the eyes of the law, because there was no one to ask for permission to reproduce them to audible quality.  Is this justified?  Well, it turns out that if diligent search was employed in the pursuit for the works’ copyright owner, then it is okay to use these orphan works.  But in case of the owner surfacing, it is very wise to have a paper trail of your efforts in your attempts to locate that owner. 

There are so many opinions related to the ideas of copyright today, each justifiable on their own terms.  Helpreni argues that ideas should live forever, not just the 70 years past a creator’s death.  He compares real property ownership with that of intellectual: if his house and other physical properties can be passed down along his family lineage in the form of inheritance, why wouldn’t intellectual property in the form of ideas? 

In Grimmelman’s article, he shares that Oregon owned the intellectual rights to Oregon laws, and that other sites, notably Justia.com-who publishes free resources in regards to state and national laws-cannot publish Oregon laws on their site.  Absurd?  Not according to Oregon, they insist that they owned the rights to their own laws and it is only up to them to publish them on the web.  This is perhaps an instance where technology is making open access to laws more obtainable, and for some unearthly reason, those working for the state of Oregon were looking to stop making the law accessible.  In the end, Oregon’s Senate waived the right to assert copyright ownership of Oregon laws. 

Hirtle explains another gray area of fair use when it comes to preservation.  There are only so many ways a preservationist can go about extending the life of others’ works, regardless of the fact that they are not doing it for commercial or self-interest incentives.  As it stands, the only legal way to preserve historical works under copyright are to make three or less copies of the original as described under the Digital Millennium Copyright Act.  If this doesn’t apply to your preservation scenario, then to the rescue is the Fair Use Act.  In order to decipher whether or not your preservation tactics are legal, there is a test you can take to find out.  In order to justify the fair use section, the preservationist must figure out: Purpose of the use, Nature of the work, Amount or substantially used, and Market impact (PNAM).  If all of these lean away from commercial and monetary incentives, then the preservation is probably justified.  But again, you won’t know if it is “fair use” until a judge enters their ruling.
Back to the Creative Commons; Toth offers some problems with the Creative Commons concept not as evident as many think.  First, there is no way of the author who allows viewers to utilize their work for non-profit are actually not making any money off of their work.  Because the CC isn’t a contract and creates unenforceable rights and is inflexible in terms of validity or irrevocability, the CC cannot help if your regulations are being violated.  So in contest, there is not much help offered by the CC.
In retrospect of all of these insights, understanding that the Copyright Office receives 2400 submissions each business day, I can comprehend the impulse to protect one’s work and ideas.  However, in recognizing the BBC’s Creative Archive Project, I agree with the idea of sharing professionally produced content.  With more liberal licensing terms, it is highly likely that more interest will surface in scholarly work.  Then again, the sharing of ideas is prompted under the assertion that works will be protected, and due credit will be given where deserved. 

Talk about gray area!  This really is a debate on perspective, as both arguments are completely valid.