July 31, 2013

We’d noted that there’s a big copyright review going on down in Australia, with the current suggestion being to recognize fair use in Australia. This would be a huge step forward because, as has been widely recognized in the US, fair use is a key driver of creativity. Yet, for reasons that make little sense, the big copyright holders hate fair use, and argue that fair use needs to be restricted… even as they rely on fair use themselves.

The problem, often, is that those who lash out against fair use rarely recognize just how important it is to their own creativity, as well as the ability to create important services that they use. So it’s especially ridiculous to see the bogus arguments laid out against fair use. Case in point, down in Australia, author Linda Jaivin has written a factually-challenged article entitled: Long story short: Fair use is theft by any other name. What’s incredible is how Jaivin’s own argument is completely undermined by her own words. Let’s start out with the very title her article is under:

Long story short: Fair use is theft by any other name

This is a hacky paraphrase of William Shakespeare’s “A rose by any other name would smell as sweet.” There is no reason to use “by any other name” other than as a reference back to the Shakespearean dialogue from Romeo & Juliet. In other words, Jaivin is relying on our cultural familiarity with the phrase “by any other name” to draw attention to her article. This is how culture works. Certain concepts or phrases become common knowledge through sharing, and the ability to adapt and change them, to paraphrase them and use them in things like column headlines to try to make your point. Yet Jaivin doesn’t even seem to realize that if the reuse of someone else’s “intellectual property” is “theft” then she has committed theft herself.

And it gets worse. The first few paragraphs of her column are all about how she relies on others’ works to write her own books.

There is often much research involved as well – my latest novel, A Most Immoral Woman, required extensive reading in the Russo-Japanese War period and visits to archives in cities in Japan and China before I could even start writing….

She’s using this to argue that writing is expensive, and thus she needs to get paid to continue such things. Indeed, that’s how things work. If you build a business, in order to keep in business, you need to make money. But that’s got nothing to do with fair use. In fact, I do wonder, when her books sell, does she contribute part of the revenue back to the authors of all of the works on the Russo-Japanese War? Or to the caretakers of those archives? After all, she has admitted to building on their important work to produce her own work and, obviously, it took time to create and manage those works as well. They need to earn a living also. So, based on her own argument, shouldn’t she have to pay a cut of her earnings to those whose work she relied on for her own? Or does it only work in one direction? Linda Jaivin is able to build her own works off the works of others, but woe be unto those who go in the other direction?

This is the reality: our ability to make any kind of living depends on a social contract, supported by law, that says this is our intellectual property. Legal systems and conventions around copyright have evolved out of respect for what it is to create content, its contribution to the social good and out of a sense of fairness that the fact that technology makes it easy to reproduce content does not mean that content is therefore free for the taking.

No, your ability to make a living depends on your ability to produce something — product or service — that enough people are willing to pay enough for that you can earn a living. That’s it. That’s how it’s always worked. Copyright is one tool — and not necessarily a great one — in making some of that possible. But, as authors and other content creators all over the world have realized, copyright is often a very blunt tool, and not a particularly effective one for earning a living. Many authors have realized that building up a real connection with their fans, such that those fans want to support them, is a hell of a lot more effective as a means of earning a living. And, as such, they realize that when people share their works, it is not harmful to their living, but rather helpful, because they can gain more fans.

To allow others to steal and/or profit from intellectual property that we have created is no different than saying it would be OK to smash your way into a designer’s atelier and grab whatever outfits you fancy. Copyright law protects against theft no less than any other property law.

And yet, she has no problem “smashing” her way into the other works she reads or archives she visits to grab whatever she “fancies.” Copyright law has never been about “protecting against theft.” It has always been about an incentive for creation such that the public can benefit. And, along those lines, in the US we’ve long recognized that fair use plays a key role in that, allowing people to increase the amount of creation by being able to build on, transform, comment on, criticize, etc. the works of others. No one is arguing for the wholesale copying of works, or the eradication of copyright here. They’re just saying that the ability to freely quote a small passage for a reasonable purpose shouldn’t require a license — and that makes tremendous sense. In fact, it makes it that much more likely that people will become aware of her works.


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