I have just added a page to this website devoted to the history of fair use. As I note in my article The Pre-History of Fair Use 76 Brooklyn Law Review 1371-1412 (2011), fair use does not begin with early American cases such as Folsom v. Marsh in 1841, as many accounts assume. The fair use doctrine began over a century earlier when English courts were considering issues of republishing and abridgment — the remix culture of the 1700′s.
My main points are
- Copyright has always involved some balancing between authors rights and users rights. Fair use is part of the legal tradition of every country that traces its copyright law back to the Statute of Anne.
- Fair use did not take away from authors rights, it made it possible for the courts to take a purposive reading of the copyright act that actually expanded authors rights.
I am in DC today at the Global Research Network on Copyright Flexibilities in National Legal Reform Meeting.
Copyright reform is under active discussion at the national level in numerous countries. The goal of the Global Research Network on Copyright Flexibilities in National Legal Reform is to produce draft language for a flexible limitation and exception that could be included in national legislation. We expect to offer this language, which may include more than one model provision, to legislators and civil society advocates in countries contemplating copyright reform. Additionally, we aim to develop an online “tool kit” to assist these deliberations.
On October 19, the Institute for Consumer Antitrust Studies is co-hosting a conference on Brands, Competition, and the Law along with University College London. This is the follow-up to a very successful program on the same theme in London in December 2011. A book with selected papers and comments from these conferences will be forthcoming.
We have assembled an all-star lineup of economists, marketing and branding professionals, as well as antitrust and IP lawyers and professors to try to reach a common understanding of the meaning and impact of brands in the market place and the appropriate legal regime. The full details and registration information for the conference are available at http://www.luc.edu/law/academics/special/center/antitrust/brands_competition_law.html.
The speakers include: Deven Desai, Kirsten Edwards-Warren, Phil Evans, Warren Grimes, Greg Gundlach, James Langenfeld, Ioannis Lianos, Deborah Majoras, Mark McKenna, John D. Mittelstaedt, John Noble, Barak Orbach, Joan Phillips, Matthew Sag, Eliot Schreiber, and Spencer Weber Waller.
There is a great story today on io9.com illustrating just why automatic copyright filtering can never be a complete solution to online copyright issues. In short,
Dumb robots, programmed to kill any broadcast containing copyrighted material, had destroyed the only live broadcast of the Hugo Awards.
Apparently, a licensed clip from Dr. Who (which would have been fair use even if it had not been licensed) triggered the filtering software and exterminated the webcast. Companies like Ustream are of course free to implement whatever dumb software they like, but if filtering becomes the norm we will all be subject to prior restraint by mindless automatons. I, for one, do not welcome our new robot overlords.