The Government Is Putting Fair Use In Danger

By Zach Walton · 16 hours ago · 13 Comments

Fair use – what do those two words mean to you? If you’ve been following copyright law at all lately, you probably have heard the term thrown around a few times. It’s considered by many to be the most important feature in copyright law, so why is it always under attack?

It would be unfair to say that fair use is directly under attack. Even the worst Hollywood executives understand fair use and do nothing to directly impede it. What bills and treaties like SOPA, PIPA and ACTA did was weaken fair use to a point where it didn’t matter anymore. Thankfully, those three laws were killed before they could change everything for the worst. Unfortunately, the most secretive treaty of all – TPP – just revealed its intentions for fair use, and it’s not good.

Is fair use a concern to you? Are exceptions to copyright law something worth protecting? Let us know in the comments.

Before we get into that though, it’s important to understand why fair use is so important. As an example, here’s a YouTube parody video based on the popular video game, Skyrim:

If you’re not aware, this video contains a lot of copyrighted content from the game’s developers. That content can not be used without permission from the original copyright owner under normal conditions. Under fair use, it’s totally legal and encouraged. You see, fair use is an exception in copyright law that allows people to use copyrighted materials if the content in question is a non-commercial parody or uses the content for criticism, commentary or education.

YouTube is actually the perfect example of fair use. The entire Web site is pretty much dedicated to it with thousands of video creators using other people’s works in ways that fall under fair use protections. The young girl singing her favorite Justin Bieber song into a camera is fair use. The political commentator pulling clips from CNN and Fox News to make a point also falls under fair use.

The importance of fair use can not be understated. That’s why the recent leak from the fair use section of TPP has proponents so concerned. After promising that the revised TPP would contain strong fair use protections, the text of the bill actually restricts fair use. Here’s the text of the treaty acquired by KEI Online:

1. [US/AU: With respect to this Article [(Article 4 on copyright) and Article 5 and 6 (which deal with copyright and related rights section and the related rights section)], each Party shall confine limitations or exceptions to exclusive rights to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder.]

2. Subject to and consistent with paragraph (1), each Party shall seek to achieve an appropriate balance in providing limitations or exceptions, including those for the digital environment, giving due consideration to legitimate purposes such as, but no limited to, criticism, comment, news reporting, teaching, scholarship and research.92]

As TechDirt points out, the leaked section on fair use actually does nothing to defend fair use or increase its reach. It pulls the text from the three step test that was introduced to the Bernes Convention in 1971. Here’s the text from the Berne’s Convention treaty:

It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

While the actual text doesn’t seem all that bad, it’s the interpretation that counts. When you leave the legality of fair use up to “not unreasonably prejudice the legitimate interests of the author,” things are going to get messy. The problem is further compounded by a Supreme Court ruling in Campbell v. Acuff-Rose Music that put the burden of proving fair use on the defendant. It’s so much easier to prove that a work is copyright infringing then to prove that it’s fair use. Thankfully, in the aforementioned case, the defendants were able to prove that their work was valid under fair use. One victory does not mean that all will be like that, and the rules of TPP make it harder for people to prove fair use.

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http://www.webpronews.com/tpp-leak-shows-that-the-u-s-wants-to-restrict-fair-use-2012-08

Sen. Wyden Wants To Blow TPP Wide Open

Hopes to force USTR to reveal TPP negotiations with new law.

By Zach Walton · May 24, 2012

The Trans-Pacific Partnership Agreement is by far one of the more dangerous treaties being tossed around world governments because we know nothing about it. Despite a minor leak of an old version last year, we’re still none the wiser as to what’s actually going on. The only people who know about the details of the treaty are the President, the United States Trade Representative, and the MPAA. Wait, what?

Sen. Ron Wyden, friend of the Internet, has been against every major treaty and piece of legislation that would harm the Internet. He was one of the co-creators of the OPEN Act, the far more tolerable alternative to SOPA. His latest target is TPP and he wants to know what’s going on.