‘Fair use’ not a consumer right

An interesting article by Patrick Ross reminded me of a website to which I recently linked, which contains a collection of articles and resources about green issues. The site itself isn’t very interesting, but I was a little taken aback by its “fair use” notice:

This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. It is being made available in an effort to advance the understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, and so on. It is believed that this constitutes a ‘fair use’ of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. If you wish to use copyrighted material from this site for purposes of your own that go beyond ‘fair use’, you must obtain permission from the copyright owner.

This is, to put it bluntly, so much self-serving bull. In what way is the reproduction of full copyright works “fair use”?

The authors of this notice appear to be under the misapprehension that not-for-profit copying is, for some reason, “fair”. Unfortunately, the “fair use” clause in the Berne Convention says nothing about non-profit use:

Article 10

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

(2) It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Another claim is that the reproduction is for the purposes of “education”. This is a misreading of the “teaching” justification. A teacher can, for example, read a literary work, display a film, or provide excerpts for educational purposes. But when each student copies an entire book, this is not “compatible with fair practice”. And that is pretty much what mindfully.org did.

I would think that if someone creates an article or other work, someone else’s unauthorised free use of it is fundamentally unfair, since it robs the copyright owner of a potential audience who might pay for the work, or who might see advertising associated with the work. Only the copyright owner has the right to grant or withhold authorisation for such use.

For that matter, the for-profit use of an excerpt or quotation may constitute “fair use” too. The case of news coverage or criticism, is a good example. Profit or the lack thereof may be a criterion in some “fair use” cases, but it is only one criterion, and mere non-profit status doesn’t ennoble illegal action on its own.

Ross makes this point, namely that “fair use” is an assertive legal defence, not an a priori consumer right.

There is no question that in the Digital Age, consumers need a better understanding of both the rights of creators as well as the limits on those rights through fair use.

Just because something can be copied, doesn’t mean that you have a “fair use” right to copy it. “Fair use” is not for you, the copier, to decide. It certainly doesn’t apply to entire works, or even just substantial parts of it, and whether or not you make a profit from it — or the copyright owner does — is entirely irrelevant. All “fair use” is, is an assertive defence when you’re charged with copyright infringement, in which case you’d better hope the judge agrees. Wholesale reproduction of the kind mindfully.org engages in is not only fundamentally unfair, it is explicitly illegal.