Fordham Report 2014: Fair Use and Freedom of Speech

As 1709 Blog readers who also follow the IPKat will surely know, the 22nd Fordham IP Conference is currently taking place in the heart of beautiful Manhattan [and 6th May is the day of my Post-Fordham Copyright Catch-Up, for which you may register here]. Yesterday I was in two panels discussing EU copyright developments and orphan works, respectively. While I will report on those panels very soon, here we go with a report from yesterday's last copyright session. This dealt with a very fashionable topic, this being the relationship between copyright and freedom of speech/expression.

Despite the title, this session was not completely US-focused, and indeed I very much enjoyed the talk by Hon Mr Justice Colin Birss (Chancery Division, High Court, London) on Article 10 of the European Convention on Human Rights (freedom of expression) and its potential role in expanding copyright exceptions in Europe.

The copyright engine

Moderated by Melissa Moriarty (VaynerMedia, New York), the session began with a presentation by Sean M O’Connor (University of Washington School of Law, Seattle), who highlighted how First Amendment's free speech values are part of the copyright engine, notably through fair use and the idea/expression dichotomy. After playing I Wanna be Sedated [was this some wishful thinking considering that it was the last session of the day?] by Ramones, he argued that well-established copyright/free speech balance should not be changed just because online content dissemination has made users' engagement [read: user generated content] with protected works so easy.

Hon Mr Justice Colin Birss spoke next. He recalled that, when he started practicing IP in 1990s, nobody spoke of human rights in relation to IP. Things have now changed, and human rights discourse has entered IP, in particular copyright. This is a piece of property [see also Article 17(2) of the Charter of Fundamental Rights], which is protected as a fundamental right in itself. So the question is how to best balance property (copyright) with freedom of expression values. It is the legislator's job to craft copyright exceptions to struck such a balance. However, some guidance may come from Article 10 itself, which sets a distinction between ideas (that should be protected within freedom of expression) and their expression (that fall within the scope of copyright). This means that under the Convention there is room for drafting broader copyright exceptions, certainly broader than what current UK copyright law allows. So, for instance, if you look at cases like those of search engines that provide snippets of texts, you may well argue that under current EU copyright this activity may be probably infringing. However, it may be argued that snippets merely provide information (not protectable expressions) and that under Article 10 they should be protected as an exercise of one's freedom of expression.

Pamela Samuelson (University of California, Berkeley, School of Law, Berkeley) spoke on the topic of appropriation and transformative use cases. She started by highlighting that 'transformative uses' may have three meanings under US law: (1) altering expression so as to convey new meaning; (2) productive uses, usually of literal copies; (3) uses for different purposes. She then considered the case of appropriation art and Cariou v Prince [here]. She concluded by mentioning that there is a number of cases (a notable example being Garcia v Google) in which copyright is used to achieve non-copyright goals. Answering a question from the audience, she noted that the outcome of the Google Books case [here] is consistent with US case law on fair use.

Fair use countries (green);
fair dealing countries (blue);
other countries (grey)

Then Bernt Hugenholtz (Faculty of Law, University of Amsterdam) spoke of the need for flexible limitations and exceptions in the EU. The principal question of his talk was whether droit d'auteur (continental Europe) traditions can accommodate fair use. He answered in the affirmative, and highlighted why more flexibility is needed. The reason is three-fold: (1) accelerating pace of technological change; (2) legislature cannot respond, but must anticipate change by embracing more abstract, open norms; (3) EU harmonisation is a lengthy process. After recalling why droit d'auteur traditions have been traditionally wary of fair use, he explained why things have somehow changed: (1) civil law has moved to more open norms; (2) authors right systems have been moving away from natural law arguments to justify copyright protection; (3) fair use is not unpredictable [but it is not so widespread either: see map]; (4) fair use does not conflict with the Berne three-step test. He concluded by recalling that Article 5(5) of the Wittem Group's Copyright Code may be a good start for injecting flexibility into the law.  

Ron Lazebnik (Fordham University School of Law, New York) was the final speaker, and he addressed the question 'Who decides what a fair use is on the Internet?' by looking into Capitol Records v Vimeo and Viacom v YouTube.