Another Market Analysis of Fair Use that Misses the Point
I am curious to read Tom Bell’s forthcoming book, Intellectual Privilege, but was disappointed at the excerpt he posted. I object to yet another proposal that fair use will disappear as a function of the ability of the market to reach all potential licensees, no matter how small, equally well. Fair use is an aspect of free speech and as such should not be contingent on one’s ability to pay for access. Further, his point seems an odd one to me, admittedly one that may be more central to the overall book, that common law should be able to provide sufficiently for the interactions of content creators and those who would license and/or use works. As such, he characterizes the Copyright Act as an exception, a necessary evil.
He also places the burden of perfect control, license and technology protection measures to enforce them, within common law. This may be technically accurate but he almost seems to be excusing them of exacerbating the situation, suggesting that rather than better balance this question of perfect control, he curtail copyright. I guess that part of the argument does follow better than the other parts I am having trouble tracking.
If you reduce what is essentially the motivation, the impulse, behind perfect control, then the use of common law tools, as he describes them, should reduce. Unfortunately, I think this runs afoul of Lessig’s “libertarian failure” that he describes in the final chapter of Code 2.0.
Reducing or avoiding regulation, in this instance not constraining the application of license and other common law fixtures, still leaves the door open for misapplication in the first place, even if the drive to do so may be arguably lessened. I also think it is disingenuous to suggest we can effectively reduce copyright, at will, and that we should be satisfied by these consumer unfriendly mechanics with which we are faced.
This steadfast faith in market driven solutions and reduced regulation bothers me. I don’t think we have sufficient evidence to give the market that much credit. And when free speech enters the mix in the form of fair use, the right to comment or criticize works regardless of the artificial monopoly of copyright, there are aspects that exist outside of or despite the market.
I agree that improving the common law mechanisms of contracts, typically realized as licenses, needs to operate better with the shift in scale and distribution brought about by the internet and digital media but I don’t think that is the same thing as saying that such improvements obliterate the need for either copyright itself or fair use. I am happy to deliberate on how these concepts may need to evolve, or be translated, but I am still unconvinced that their time has come.
