Earlier this week, the Australian Law Reform Commission published an Issues Paper titled Copyright and the Digital Economy. The paper asked 55 questions about copyright and possible reforms to Australia’s copyright laws. The paper discusses many reforms debated in Canada during the 2009 Copyright Consultations and more recently during the debates and examination of The Copyright Modernization Act (Bills C-32 and C-11) in the House of Commons Special Legislation Committee. These include new exceptions to permit copying for private uses such as format and time shifting, online uses for social media, uses by libraries, archives and for education, and safe harbours for Internet intermediaries.
One of the many questions asked in the Issues Paper is whether Australia’s fair dealing exception should be amended to include a “broad, flexible exception” such as US fair use.
This is a question that will resonate with Canadians. The issue of whether Canada should adopt US style fair use was hotly debated during our copyright reform process. Advocates such as a Michael Geist argued that our fair dealing exception should be expanded by adding the words “such as” to the then current list of allowable purposes. There was considerable opposition to this proposed amendment by Canadian rights holders who filed a joint submission to the Copyright Consultations against the proposal titled Why Canada Should Not Adopt Fair Use: A joint submission to the Copyright Consultation.
The Canadian Government, despite considerable lobbying for the amendment, rejected it, opting instead to broaden the allowable fair dealing purposes to include satire, parody, and education and to enact a series of specific amendments where changes were thought necessary.
The Australian Issues Paper listed arguments for and against the US fair use model to provoke discussion. The arguments made in favour of fair use were
- assistance to innovation, and
- underuse of existing exceptions.
The arguments made against it were
- uncertainty of application,
- likelihood of higher transaction costs,
- the need for litigation to determine the scope of permitted uses,
- potential access to justice problems,
- possible over-claiming by owners and/or an overly cautious response by users,
- lack of jurisprudence,
- the problem of transposing a doctrine from a different legal system, and
- that fair use may not comply with Australia’s international obligations with respect to the Berne three-step test.
As it happens, this month two US Circuit appeal courts released opinions on fair use. They seem to bear out some of the criticisms of fair use raised by the Issues Paper. Both cases involved the issue as to whether publishing a photograph in a commercial magazine without consent is a fair use.
In Balsley v. LFP, INC., the publisher of Hustler magazine was found liable for copyright infringement for publishing photos of a female reporter, Balsley, in a “Hot News Babes contest”. While on vacation in Florida, Balsley entered a “wet t-shirt” contest at a bar and ultimately danced nude. An amateur photographer named Gontran Durocher was in attendance and took pictures of Balsley in various states of undress, without Basley’s knowledge. Durocher published the photographs of Basley on lenshead.com. A few months later, Basley lost her job when the story was publicly reported. In order to protect her reputation, Balsley bought the copyright in the photos in order to prevent their further publication. It didn’t work. Hustler got a hold of the photos and published them, even though the copyrights in them were registered in the US Copyright Office.
Without fair use, the Balsley case could have been a slam dunk inexpensive one. But, Hustler ran up the costs defending the case arguing fair use. At trial the jury rejected the fair use defense and the Sixth Circuit affirmed the finding on appeal.
In Monge v. MAYA MAGAZINES, INC., the issue in the appeal was whether publishing previously unpublished stolen photos of a clandestine wedding was infringement. But for the availability of the fair use defense, this case also should have been an easy inexpensive win for the copyright holder. But, the magazine defended it on fair use grounds. The district court granted the publisher summary judgment on the defense. The case was appealed. On appeal, the Ninth Circuit disagreed that the publication was a fair use and reversed the decision. According to the court “The tantalizing and even newsworthy interest in the photos does not trump a balancing of the fair use factors. Simply put, Maya did not sustain its burden of establishing that its wholesale, commercial use of the previously unpublished photos constituted fair use.” Here again, the costs of copyright enforcement skyrocketed because of the unpredictability of applying the fair use factors.
In reversing the trial decision, the Ninth Circuit commented about just how troublesome US fair use is. Giving the Aussie’s something to think about, the Ninth Circuit Court of Appeals said:
The fair use doctrine has been called “the most troublesome in the whole law of copyright.” Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939) (per curiam). This affirmative defense presumes that unauthorized copying has occurred, and is instead aimed at whether the defendant’s use was fair…
Fair use is a central component of American copyright law. Although its roots, like copyright law itself, may be traced to English courts, the doctrine first took hold in this country in Justice Story’s opinion in Folsom v. Marsh, 9 F. Cas. 342 (No. 4901) (C.C.D. Mass. 1841). He wrote that “a fair and bona fide abridgement of an original work is not a piracy of the copyright of the author.” Id. at 345. Foreshadowing future commentary on fair use, Justice Story noted that “what constitutes a fair and bona fide abridgement, in the sense of the law, is one of the most difficult points, under particular circumstances, which can well arise for judicial discussion.” Id. Justice Story characterized copyright cases as approaching “the metaphysics of the law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”
Fair use became more concrete when it was codified in the Copyright Act of 1976: “[T]he fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . ., scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. Courts are directed to determine fair use on the basis of the following non-exclusive factors:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In 1992, Congress amended the fair use section to address the status of unpublished works: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
In the years following the 1976 Act, courts have decided countless cases involving the fair use doctrine. Some commentators have criticized the factors, labeling them “billowing white goo” or “naught but a fairy tale,” echoing courts that threw up their hands because the doctrine is “so flexible as virtually to defy definition.” Princeton Univ. Press v. Mich. Doc. Servs., Inc., 99 F.3d 1381, 1392 (6th Cir. 1996) (citation omitted). A leading treatise in this area notes that the statute provides “no guidance as to the relative weight to be ascribed to each of the listed factors,” and, in the end, “courts are left with almost complete discretion in determining whether any given factor is present in any particular use.” Nimmer on Copyright § 13.05[A] (footnotes omitted).
We acknowledge the porous nature of the factors but nonetheless recognize that we are obliged to make sense of the doctrine and its predicates…
Australia had previously studied amending its copyright law to enact US style fair use. Like the UK and New Zealand which also studied and declined to adopt it, in 2006 the Australian Government rejected it. The reasons given for eschewing fair use were summarized in the paper Why Canada Should Not Adopt Fair Use: A joint submission to the Copyright Consultation.