House Judiciary Ponders Fair Use

Just what was and wasn't a transformative work in terms of fair use protections was a hot topic Tuesday in a House Judiciary Subcommittee on Courts, Intellectual Property and the Internet hearing on that carve-out from copyright protections.

The witnesses had much to say on both sides of the debate on whether fair use has kept up with the digital transformation of content.

Subcommittee Chairman Howard Coble (R-N.C.) set up the debate with the observation that the strength of fair use was its ambiguity, which leaves the courts to clarify on a case-by-case basis, but that ambiguity was also its greatest weakness.

American University professor Peter Jaszi carried the standard for a broad interpretation of fair use. Asked by Coble whether a definition of "transformative" should be codified, Jaszi said it would be great mistake to "arrest the judicial process by reducing it to a narrow definition." He also said anyone arguing to narrow fair use had a high bar to clear.

But another academic, Columbia Law professor June Besek, argued that the courts were interpreting too broadly the "transformative works" fair use definition. She said fair use had been expanding "extraordinarily" and was not meant to be a carte blanche.

She said transformation had been expanding beyond the creation of new works to simply new uses of a work, "uprooting" it and applying repurposed content that created new business models rather than new works of authorship.

Joining Besek in seeking a less expansive view of transformation was a singer/songwriter, who pointed out that some folks were asserting that if they added some annotations to his lyrics, it was OK to post them on Web sites without compensation, which he pointed out was in direct competition to the lyric sites that did pay him. He said he did not view adding a few annotations as transformative. He said the rights of authors should not be trumped via illegal copies masquerading as fair use.

Jaszi conceded that some alleged fair uses may be "pretextual"—as in the pretext of fair use—rather than real.

Rep. John Conyers (D- Mich.), ranking member of the Judiciary Committee, said he thought current law was striking the right balance. "I generally believe it is working as intended," he said. He said it was crucial for news organizations and broadcasters to be able to use copyrighted material to discuss historical events and draw meaningful insights from them.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.