[WikiEN-l] Re: New fair use tag proposal

[Ray Saintonge]

Fastfission wrote:

>The problem here is that you can't "give" fair use privileges. Fair
>use is a defense, not a form of permission. When we post a fair use
>tag, it is really a pre-emptive statement that says, "If you sue us,
>this is what we'll say in court, and we think we'll win."
>
I agree that you can't "give" fair use privileges.  I see it primarily 
as neither a defense nor a permission, but a right.  The precise 
phrasing of the law in section 107 is important. "Notwithstanding the 
provisions of sections 106 
<http://www.copyright.gov/title17/92chap1.html#106> and 106A, 
<http://www.copyright.gov/title17/92chap1.html#106a> the fair use of a 
copyrighted work, including such use by reproduction in copies or 
phonorecords or by any other means specified by that section, for 
purposes such as criticism, comment, news reporting, teaching (including 
multiple copies for classroom use), scholarship, or research, is not an 
infringement of copyright."

The Supreme Court of Canada gave an interesting analysis of a similar 
point in Canadian law in CCH Canadian v. Law Society of Upper 
Canada:http://www.canlii.org/ca/cas/scc/2004/2004scc13.html

> 48     Before reviewing the scope of the fair dealing exception under 
> the Copyright Act, it is important to clarify some general 
> considerations about exceptions to copyright infringement. 
> Procedurally, a defendant is required to prove that his or her dealing 
> with a work has been fair; however, the fair dealing exception is 
> perhaps more properly understood as an integral part of the Copyright 
> Act than simply a defence. Any act falling within the fair dealing 
> exception will not be an infringement of copyright. The fair dealing 
> exception, like other exceptions in the Copyright Act, is a user's 
> right. In order to maintain the proper balance between the rights of a 
> copyright owner and users' interests, it must not be interpreted 
> restrictively. As Professor Vaver, supra, has explained, at p. 171: 
> "User rights are not just loopholes. Both owner rights and user rights 
> should therefore be given the fair and balanced reading that befits 
> remedial legislation."

Where  your approach goes wrong-headed is in considering a fair-use tag 
as a "pre-emptive statement" rather than an exercise of user rights.  We 
should not be looking at every such instance out of fear that it might 
land us in court.  That is the essence of legal chill, of which 
copyright paranoia is a subset.  This is all a question of attitude.  A 
sense of rightness and a fear of the law indicate separate paths which 
will most often lead us to the same place

In the same decision Madame Justice McLaughlin quotes Lord Denning in 
the 1972 British case of Hubbard v. Vosper about fairness:

>  It is impossible to define what is `fair dealing'. It must be a 
> question of degree. You must consider first the number and extent of 
> the quotations and extracts. Are they altogether too many and too long 
> to be fair? Then you must consider the use made of them. If they are 
> used as a basis for comment, criticism or review, that may be a fair 
> dealing. If they are used to convey the same information as the 
> author, for a rival purpose, that may be unfair. Next, you must 
> consider the proportions. To take long extracts and attach short 
> comments may be unfair. But, short extracts and long comments may be 
> fair. Other considerations may come to mind also. But, after all is 
> said and done, it must be a matter of impression. As with fair comment 
> in the law of libel, so with fair dealing in the law of copyright. The 
> tribunal of fact must decide

The machine that can be applied to every instance to determine fair use 
does not exist.  A "non-commercial use" permission can still be fair use 
in a commercial context.  It is our own collective attitude toward 
fair-mindedness that matters, and that needs to be applied at each step 
of the process.  There are ample opportunities to do this, so let's not 
be in a hurry to beat down the courtroom doors to defend a case that has 
not been filed.

>Now, if you say ahead of time, "Well, we're not going to sue you" --
>does that change anything? Not really. What if you changed your mind?
>You're not bound *not* to sue us (or, put in a less accusatory way:
>what if your group was suddenly acquired by someone else who did not
>want to honor your previous informal agreement?).
>
This is a question of permissions and contracts.  If there is a 
permission in place, and we want to invoke it as a defence, we need to 
have our documentation in order or that defence will be much tougher 
than invoking fair use.  We better be ready when the copyright holder's 
grandson decides to make a claim 50 years from now.

>So whether or not the usage of the materials is "fair use" is totally
>unrelated to whether or not your group approves. The transference of
>privileges you are talking about is really just a form of licensing,
>which is *not* what fair use is about.
>
OK

>Whether that means we can or can't use your content depends on its
>use. I suspect it would still be mostly fair -- a picture of you and a
>simple table don't sound like things which are going to defraud
>anybody. And if we trust you not to sue, that would probably bend the
>"is it fair?"-ometer towards the "not going to sue us" section of
>things, so it probably isn't a problem. But it isn't so simple as just
>"granting" fair use -- it is not a license, it is a defense against
>allegations of violating a license. That's an important difference!
>  
>
"Granting fair use" is as valuable as giving you the rights that you 
already have.

Ec