Time for Fair Use to Catch UP

Though not a direct follow up to my previous post about Mike Hipple, this post further deals with the fair use of copyrightable material. It, however, takes a look possible changes that could be made to the fair use statutes in the future. Like my previous post on the topic, this post was originally written for North Carolina Journal of Law & Technology Blog and that version of the post is available here.

The story of Mike Hipple (previously discussed on this blog) dealt with the “incidental use” of a copyrighted work. An incidental use of a copyrighted work “involves capturing copyrighted works, where the copyrighted work is not the primary focus of the use—for example, capturing music playing over radio when filming a family moment” or in Mike Hipple’s case, capturing a copyrighted sculpture on the edges of a portrait.  Currently, there is no mention of incidental use in the fair use statute, however,Public Knowledge is working to change that. Public Knowledge, a public interest group, recently released the first part of their ideas for the Copyright Reform Act.  This first release included 7 words that should be added to the statute, including, the previously mentioned “incidental use”, “non-consumptive use” (i.e., a use that does not trade on the work’s creative expression) and “personal and noncommercial use”. These three types of use would be added to the preamble of the statute. Though additions to the preamble would not negate the necessity of a full fledged fair use analysis in infringement actions, (for an example of such an analysis, refer to the previous discussion about Mike Hipple and his photography) they would weigh heavily in favor of the alleged infringer on the “character of the use” factor of such an analysis.

The rapid growth of technology has sometimes left existing laws unable to deal with the changing technological and media landscape. If Public Knowledge’s proposed fair use changes were enacted, it would be a small step in the efforts to align the law with way people create and consume media. The only real negative to these changes, is that they are are coming too late to help Mike Hipple in his legal battle.

Hat tip to Ars Technica for their initial reporting on this story.