Fair use is not a business model. It is a limited affirmative defense to a charge of copyright infringement. As such, publishers seek to avoid having to rely on fair use. The result is that fair use in practice exists far within the bounds of the law of fair use. It is much cheaper to obtain a license than to go to trial to defend a copyright infringement lawsuit.

As a result of this calculus, there are … a paucity of fair use decisions (especially appellate decisions). Because the actual structure of fair use is entirely a judge-made common law, the fewer decisions available, the less case law support exists for advocating particular interpretations of fair use.

This creates a feedback loop, where the legal departments of publishers are exceptionally cautious about matters of fair use– with good reason– and will require creators to obtain licenses before publishing any work that incorporates quotes or snippets of other works.

IPTABlog. [Comedies of Fair Use] Thoughts on Fair Use. May 4, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.

“My goal is to state the case for a new vision of culture and copyright in Canada. I will discuss the transformative power of the Internet and new technologies while illustrating that this is a good news story for industries new and old. With the cultural opportunities in hand, I will discuss copyright, demonstrating how copyright policy developed in Canada over the past two decades while few of us were paying attention.

“I will also assess how it might continue to unfold if more Canadians do not become engaged in the policy process. I will conclude by illustrating how things could be different. Canada has a choice and our leaders have been vested with an unprecedented opportunity to articulate a cultural and copyright vision that brings access to knowledge for all Canadians from coast to coast to coast. One that unleashes the creative spirit in millions of Canadians. One that transforms our education system. One that respects our privacy and protects our security. One that preserves our heritage.

“Yes, copyright can do all that. Let us look at how.”

Michael Geist. Our Own Creative Land: Cultural Monopoly & The Trouble With Copyright (The Hart House Lecture 2006). (.pdf) University of Toronto. 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.

“A relatively little-known fact outside of copyright practice is that movie studios regularly purchase the film and television rights to newspaper stories. Yes, newspaper stories, which by their nature, report on facts or ideas, two things the copyright law does not protect. So what are studios buying?

“One answer is that the rights aren’t expensive. Yet that’s still money. Why would anyone pay several thousand dollars something that doesn’t exist? Its like buying property in never-never land.

“The supplementary answer is that studios are preventing even a remote risk of a lawsuit brought by the newspaper.”

Lessig Blog. Why Do Studios Pay for Newspaper Movie Rights? May 4, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.

“World Intellectual Property Organisation (WIPO) members have agreed to split off webcasting from their ongoing discussions on a potential new treaty intended to define the rights of broadcasters over their transmissions.

“The compromise was reached during the 1-5 May meeting of the ‘Standing Committee of Copyright and Related Rights (SCCR),’ the WIPO technical body that is considering the controversial draft proposal for a WIPO treaty on the protection of the rights of the broadcasting organizations (SCCR/14/2). Talks on the issue started in 1999; the first draft basic treaty proposal was tabled in 2004 (SCCR/11/3).

“The driving force behind the negotiations has been broadcasting organisations’ desire to obtain a level of protection for their transmissions similar to the rights accorded by the 1961 Rome Convention to performers and the recording industry for their works — albeit updated to account for decades’ worth of technological advances, notably the switch to digital transmission. The draft treaty proposes to grant the organisations exclusive rights to authorize the distribution and re-transmission of their broadcasts.

“During the course of the negotiations, the issue of webcasting — which refers to transmission by wire or wireless means over the internet — entered the debate, primarily backed by the U.S. Eventually, negotiators agreed to divide the issues into two separate tracks.”

Bridges Weekly News Digest, International Centre for Sustainable Trade & Development. WIPO Moves Forward On Broadcasting Treaty, Webcasting Talks Split Off. May 10, 2006.

See also:

James Love. WIPO Carves Up the Internet (and the Broadcast Spectrum). The Huffington Post. May 4, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC.