Reposting a blog post I wrote for my Copyright Law Class. Discussing erosion of fair use rights because large companies are licensing rights instead of paying for costly litigation.
One of the professors at U of R Law also wrote an article for the Washington Post concerning the same issue- it is a much better read than mine. You can check it out here.
Fair use is a defense relied on when a copyright holder claims the work infringes their original work. However, instead of thinking of fair use only as a defense, artists (and the attorneys who represent them) need to advocate that fair use is a right. By concentrating solely on the defense aspect of the doctrine, the protections afforded by it are being eroded away.
Copyright protection creates an incentive for the artist to create a work. The legal protection allows that artist to recoup their expenses and hopefully profit. This protection is afforded to them because society is better off having the work created and shared in smaller quantities than not shared because of fears of cheap copies. However, fair use is designed to allow critical examination and education through use of copies for which the artists does not profit. The benefit to society outweighs the harm to the incentive for the artist.
One of the factors examined to determine if a use falls under the Fair Use doctrine is “the effect of the use upon the potential market for or value of the copyrighted work” (17 US Code §107). The court will look to the impact on the potential marker for the original good if the infringing copy is allowed. Often, because the work is an educational or news item, the infringing work does not steal any market from the original work. In many cases, the market could be expanded because of increasing interest in the original work due to the discussion.
Recently, developments in the business, technology and legal fields have created situations where areas that used to be protected are now included in as part of an artist’s incentivized market. Through the technological advances in internet video and distribution, overstated legal threats and cost driven business decisions winning out over costly legal arguments, the uses that the Fair Use doctrine previously protected are being absorbed into potential markets or eliminated completely. Continue reading