Criminal Use is not Fair Use

The Computer and Communications Industry Association this week issued a white paper attempting to assign economic value to the fair use defense against copyright infringement by presenting combined data of industries that “depend on fair use and other limitations upon the regulatory reach of copyright laws”.

The paper is interesting spin. Most of the jobs and industry cited in this paper could just as easily (and more accurately) be characterized as being supported by intellectual property rights and enforcement. Software developers are also copyright owners. Manufacturers of MP3 players and DVRs are patent holders. As are most Internet search engines and hosting providers. Ironically included in the numbers CCIA holds up as “fair use industries” are other copyright industries, as pointed out in a blog today by the MPAA. In fact, no sector has more at stake in fair use and its applications than the creative sector, so if a white paper spinning these jobs as “fair use dependent” is to be done, it is accurate to include the jobs generated by the creative sector – even though it’s rhetorically inconvenient for CCIA to do so.

To prove the point, try a simple substitution. Substitute the term “creative sector” for “fair use” and the resulting economic point is no less true. For example: The research indicates that the industries benefiting from the creative sector make a large and growing contribution to the U.S. economy. Another example: The creative sector has grown in importance with the rise of the digital economy as it drives the demand for search portals and web hosting. And finally: The desire by consumers to enjoy copyrighted works has spawned purchase of a broad range of products such as digital video recorders and MP3 players, stimulating additional economic activity in the United States and in all of the countries where the machines used for these activities are manufactured.

But the aim of the paper is to unnecessarily pit one economic sector against another. And to reinforce the old canard that fair use is somehow a doctrine the creative communities oppose. In truth, although CCIA and others who like to try to pick fights between the creative community and the technology sector don’t like to admit it, fair use is a doctrine relied upon and championed by artists and creators, large and small on a daily basis as a means of continuing their work, educating their audiences, and offering criticism, reporting and commentary in the most effective fashion. Copyright law is a tapestry of rights and exceptions, and its effective nurturing and implementation relies just as heavily on appropriate evaluation of defenses (such as fair use) as it does on strong enforcement against harmful infringements. No one in the creative community denies that, and artists and creators would be the first to suffer if the fair use doctrine were rolled back.

Despite the message CCIA seems to be peddling, copyright enforcement and fair use are not at odds, nor are creators and technologists. This is a false choice. Copyright, innovation, creativity and technology are interconnected as never before, as the creative sector designs and creates works that drive technological innovation for enjoying the works (and vice versa).