We Should Stop Calling Fair Use A 'Limitation & Exception' To Copyright; It's A Right Of The Public

from the that's-important dept

Language matters. In debates we see over copyright and other issues, it's often amazing how the industry has really twisted the language to their advantage. A few years ago, Bill Patry wrote an excellent book all about how the entertainment industry inserted its preferred language into all of the debates over copyright, such that they can claim the moral high ground on an issue that is really a business model/economic one for the most part. Of course, those of us pushing for fixing problems in copyright law unfortunately sometimes fall into the same traps. Just recently, for example, we talked about how we should stop calling things "orphan works," and more accurately describe them as they are: hostage works.

I was thinking about this while watching Jamie Love's recent interview with Alan Adler, the VP of Legal & Gov't Affairs for the Association of American Publishers. We already discussed the substance of the discussion around various international agreements for "limitations and exceptions" to copyright law. "Limitations and exceptions" has been standard terminology for things like fair use, fair dealing and other "valves" to stop copyright from being completely oppressive. However, as I watched Adler, some of his comments around those things bothered me. You can watch it below, but I'll call out a few quotes:

"For publishers, they really don't have a business, unless they own intellectual property assets, that they're able to use, control and exploit in the marketplace. So the threat of piracy and the threat of restrictions, limitations, exception to their rights as copyright owners is always a concern to them, because it effects the way they do business. The WIPO is now looking at creating international instruments addressing a number of different things -- but all of them have one thing in common: they would cut back on the rights of publishers as copyright owners by introducing new limitations and exception to those rights..."

"Interestingly, our interest and concern about whether it's a treaty or some other form of international agreement, probably would not have been much of a problem if we were only working on the issue of print disabilities. But with the effort to develop supposed proposed treaties on limitations and exceptions for educational uses and also a separate effort moving parallel to this, to develop a similar treaty on limitations and exceptions for uses by libraries and archives. The problem we have in the area of print disabilities is we really don't want to establish a precedent of developing a series of treaties that specifically focus on trying to set forth minimal limitations and exceptions to the rights of copyright owners. Up until this proposal with respect to print disabilities, generally the treaties and other international agreements that have been devised by the WIPO have been to establish the minimal rights of copyright owners -- not the limitations and exceptions to those rights. And the notion that now, because of the concerns of developing countries and some of the agreements that have been made to pursue an agenda of issues that are of concern to developing countries, we're now beginning to focus on limitations and exceptions."

I have to admit that it's somewhat refreshing that Adler comes right out and says this honestly: that the companies he represents are worried that it might change their business models, rather than making any kind of unsupported moral claims or suggestions that these "limitations and exceptions" are somehow going to destroy content.

That said -- and this comes through strongly in that second quote above -- it's a bit disturbing the way he seems to think that the only thing at issue is the rights of copyright holders, and the way he only describes limitations and exceptions in terms of how they take away rights from the copyright holders. That's incredibly misleading. These "limitations and exceptions" with things like fair use are actually rights of the public. Copyright has always been a restriction on the rights of the public. We can argue over whether or not it's a reasonable or appropriate restriction, but that's what it is. When we flip the language and call things like fair use -- which give back some rights to the public -- "limitations and exceptions," we're unfortunately playing into the language framing of copyright holders, and allowing Adler to say things like he does above and have them sound marginally reasonable.

Yet, if you changed around what he said to make it more accurate by noting that these limitations and exceptions are really about increasing the rights of the public, you begin to realize that what he's saying is pretty crazy:

"For publishers, they really don't have a business, unless they hold government-granted monopoly privileges, that they're able to use, control and exploit in the marketplace. So the threat of infringement and the threat of the public regaining some of their own rights is always a concern to them, because it effects the way they do business. The WIPO is now looking at creating international instruments addressing a number of different things -- but all of them have one thing in common: they would increase the rights of the public by restoring their ability to make use of those works...

"Interestingly, our interest and concern about whether it's a treaty or some other form of international agreement, probably would not have been much of a problem if we were only working on the issue of print disabilities. But with the effort to develop supposed proposed treaties on the public's rights to use works for educational uses and also a separate effort moving parallel to this, to develop a similar treaty on the public's right for uses by libraries and archives. The problem we have in the area of print disabilities is we really don't want to establish a precedent of developing a series of treaties that specifically focus on trying to set forth expanded rights for the public. Up until this proposal with respect to print disabilities, generally the treaties and other international agreements that have been devised by the WIPO have been to take away and limit the rights of the public -- not to expand and clarify those rights. And the notion that now, because of the concerns of developing countries and some of the agreements that have been made to pursue an agenda of issues that are of concern to developing countries, we're now beginning to focus on the rights of the public."

That is a lot more accurate version of what he's saying when you realize the nature of what's really being discussed. So even as we're happy that at least there's been a lot more talk of "limitations & exceptions" (even by the USTR in the TPP negotiations), it seems wrong to cede the framing of the discussion to special interest industry folks. These aren't "limitations and exceptions," they're the public's right to access, to create and to express themselves.

Filed Under: alan adler, blind, copyright, fair use, limitations and exceptions, public, public rights