I have to admit that the more I learn about copyright the more frustrated I seem to become with it. I used to think that copyright wasn’t too overbearing, it just lasted too long. However, the more I learn about the restrictions that copyright places on use, even fair use, the more ridiculous copyright laws seem to be. The most infuriating thing I learned this week about copyright is the ways in which new copyright laws impact Fair Use.
Fair Use is the idea that even though a work may be copyrighted, that copyright has certain holes in it that allow for people to freely use the work under certain conditions. James Boyle, in his book The Public Domain compares this view of copyright to swiss cheese, and reminds us that “that the holes matter as much as the cheese” (2008, p. 65).
I think this is a good metaphor because these these holes were not removed in order to save some pieces of the cheese for others. Rather the holes exist in the very making of the cheese. Likewise, when copyright is enacted to restrict use of material, it automatically has some holes in it that allows some uses to slip through. These fair use “holes” allow for the following free uses of a copyrighted work … or at least they did until 1998 and the Digital Millennium Copyright Act (DMCA).
The Swiss Cheese Metaphor no longer works in the world of the DMCA because the DMCA found a way to restrict fair use. So I present another metaphor, one of traveling down a path.
Copyright creates a monopoly over the path (the resource) that someone would like to use. This means that if I want to go beyond the wall of a copyrighted work I have to pay for access to it.
Luckily, fair use says that I can have access under the circumstances previously listed. This opens the wall and gives me a road to travel down, so long as I don’t leave the road.
However, that changed with the DMCA. Under the DMCA, I can only use the road IF THE ROAD IS UNPROTECTED. If the owner of the copyright has taken measures to protect that road, usually through some kind of encryption, then I cannot use the road. And it doesn’t matter how easy or difficult it is to get past the protection, if the protection is there, then fair use of what lays beyond it is restricted. The Authors Alliance explains it this way:
“In 1998, Congress enacted the Digital Millennium Copyright Act (the “DMCA”), which includes a provision, Section 1201, that makes it illegal to circumvent technological protection measures (like digital rights management, or “DRM”). Section 1201 makes it incredibly difficult for authors to make fair use of many digital works because breaking the DRM may be illegal, whether or not the use is fair. For example, if an author were to create an e-book that commented on a video clip from another work, the author might not be able to rely on fair use to incorporate a copy of the DRM-protected video clip in his or her work.” (Read the rest at https://www.authorsalliance.org/2018/03/02/fair-use-and-the-digital-millennium-copyright-act/)
So, regardless of whether there are many strands of razor wire …
… or only a single, easily clipped strand of razor wire,
if a copyright holder has taken any precautions that protect their digital media, then that media cannot be considered fair use. I believe we need to get back to allowing the fair use freedoms that are intended to be included with copyrighted works. Copyright is meant to have holes, we cannot allow copyright holders to say “Sure you are allowed to have access to my work for fair use, but only the parts I want!” Doing so is a restriction of our creative freedoms.
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