The Eternal Battle of Copyright Fair Use v. Licensing

In All of This Has Happened Before and All of This Will Happen Again: Innovation in Copyright Licensing, Rebecca Tushnet considers whether easier, cheaper (even free) licensing of copyrighted works should supplant fair use doctrine. (Spoiler alert: no!). The abstract:

Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action — along with the right to claim that unlicensed uses are infringing. In a world where licenses are readily and cheaply available, the argument will go, it is unfair not to get one. This development, copyright owners hope, will combat increasingly fair use — favorable case law.

This article describes three key examples of recent innovations in licensing-like arrangements in the noncommercial or formerly noncommercial spheres — Getty Images’ new free embedding of millions of its photos, YouTube’s Content ID, and Amazon’s Kindle Worlds — and discusses how uses of works under these arrangements differ from their unlicensed alternatives in ways both subtle and profound. These differences change the nature of the communications and communities at issue, illustrating why licensing can never substitute for transformative fair use even when licenses are routinely available. Ultimately, as courts have already recognized, the mere desire of copyright owners to extract value from a market — especially when they desire to extract it from third parties rather than licensees — should not affect the scope of fair use.

I have a couple comments after the jump.

The article's descriptions of the three licensing options seem spot on. The key reasons why we might not want licensing like this to trump fair use become apparent from the descriptions of the services, though they are no longer directly about price and transactions costs: privacy concerns, veto power, anticompetitive favortism of some copyright owners, transformative uses that fall outside licensing, etc. These are all important reasons why we should have a fair use doctrine.

As the article notes, that doesn't mean we shouldn't have innovative licensing arrangements. It just means that we cannot (and should not) expect such arrangements to answer all the questions we might have. I recommend the article as a nuanced examination not only of fair use but also of new licensing schemes.

One lingering question this article leaves me with, as do many do in this area, is what should we make of these licensing schemes if they don't solve everything? Do they solve anything? For example, while there are many reported cases of transformative uses being rejected by ContentID on YouTube, there are many hundreds of thousands (millions?) of licenses that are cleanly handled for what amount to be direct copies with little fair use benefit. And those licenses each avoid what used to be a DMCA takedown notice so the content is being shared, albeit with ads that nobody really likes. But as between the uploader, Google, and the copyright owner, an agreement between Google and the copyright owner seems to make the most sense. The questions for me are: a) what are the relative harms associated with  misidentification, and how do we deal with them, and b) what are the harms associated with anticompetitive lockout (or forcein) and how do we deal with them?

I had a similar question about the Kindle Worlds project. As the article notes, the fan fiction that can go in the system is limited, and the revenue isn't as great as you can make on your own. Or is it? As the article describes, 50 Shades of Grey was huge as a standalone hit. Most people don't know the Twilight connection; had it kept that connection, it may not have been a hit. Folks selling in Kindle Worlds might be able to claim fair use outside of the system and make more money, but they still opt in to it. That makes me wonder about whether a billion people on Amazon is better than a few hundred thousand people on fan fiction sites.

And finally, Getty Images. As the article notes, the license is hardly a license, because you can use an image tag to embed an image without copyright liability. So then why didn't everyone do that before? I suspect the answer is that the images were watermarked or otherwise of low quality. The article suggests that Getty makes it really hard to embed the photos, which implies that it was impossible before. And so, while we should retain fair use and we disdain Getty Images veto power, I would like to see more data on how many pictures were on websites before and how many are there now. I'd also like to see how often veto power or objection to embedding has actually taken place.

In short, in the eternal battle between licensing and fair use, I get the sense that there's little give on either side. Fair use advocates often underplay the widespread benefits of licensing (and I don't mean this article in particular, which does discuss benefits). Licensing advocates tend to underplay the need for fair use. It would be nice if we could all just get along.