Whose Content Is It Anyway?

I expected to be less than riveted when I saw a panel of lawyers on the agenda at the SIIA summit talking about copyright and fair use. 

Jon Hart, Member Dow Lohnes PLLC, was the moderator. Tom Kirby, Partner Wiley, Rein & Fielding, and David Olson, Resident Fellow Center for Internet & Society, were the panelists.  

The session started a bit tongue in check with Jon’s statement “No one writes without being paid unless they’re a block head.”

We all know what leaves me! 

Copyright protection was built into Article 1 Section 8 of the Constitution “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…”

In order to “allow free speech to co-exist with copyright”, the Fair Use Doctrine was born. According to Stanford: 

“Fair use is a copyright principle based on the belief that the public is entitled to freely use portions of copyrighted materials for purposes of commentary and criticism.”

Tom Kirby reviewed four factors a court would consider in determining whether a use was a fair use or subject to copyright. 

Purpose and Character of the Use
Did someone take the core of the work and sell it for profit? Did they add any value to the work or expand it in any way?  

Nature of the Copyrighted Work
A work that is fact-based (scientific or news related) may be more difficult to protect under copyright than a creative work.

However, the panelists felt that unpublished works are often more protected than previously published works. The courts seem to place a high value on the right of first publication. 

Amount and Substance of Use
How much of the copyrighted work was used?  

“How much” is judged both quantitatively and qualitatively. If someone took the essence of the work while only reproducing a small percentage of the original, the use may still be considered in violation of fair use. 

Impact on the Market of the Original Product
If the use “deprives the copyright owner of income or undermines a new or potential market for the copyrighted work” it is more likely to be considered a violation of fair use.

This session made me realize that I knew nothing about copyright and fair use. It was a great primer!