The Fair Use Thing

Shelley Batts wrote a blog post recently and used a figure from the scientific paper she was discussing to illustrate her arguments. Then Shelley received a cease-and-desist type notice. The blogosphere went wild, and the publisher basically told Shelley to forget about the cease-and-desist notice.

There is a joker in the deck when dealing with “fair use” and copyrighted materials: The Digital Millenium Copyright Act doesn’t have an explicit “fair use” exception. The letter of the law will allow a copyright holder under DMCA to press for statutory damages upon infringement, and those aren’t cheap.

So, while getting copyright holders to come to a “gentleman’s agreement” that what science bloggers generally do with copyrighted materials should be given a pass is a good thing, the real battle lies elsewhere.

Copyright protection has gone far beyond a reasonable period for creators to benefit from control of their work. The big push behind the ever-expanding time periods for coverage has been the juggernaut of big business, specifically the media corporations whose holdings might otherwise start becoming public domain. As it stands, A.A. Milne’s “Winnie the Pooh” is not yet in the public domain in the USA, but will be in 20 years or so, if the copyright age is not further extended in the interim. Corporate authorship of works gets protection for a whopping 95 years currently.

The same corporate interests that have pushed so relentlessly to keep materials from entering the public domain have also pushed for ever more draconian penalties to be applied to infringement of copyright and unprecedented controls and veto power over emerging technologies. Just come up to speed on the sorry history of what media interests have done to make DVD and other digital storage technology friendly to their interests, like arguing for the ability to remotely — and permanently — disable equipment that a copyright holder believes may have been used to infinge a copyright. The club-like nature of acts like the DMCA, with no provision for “fair use”, demonstrates just how far things have gone.

Countering the out-of-control copyright vulture culture isn’t going to be solved with a little pressure on publishers of scientific papers. The extent and duration of copyright protection needs to be balanced by the need to protect free expression, which includes expression about works that are still under copyright protection. Right now, things are way out of balance. Does “Winnie-the-Pooh”, published in 1922, need to be kept from the public domain until 2027? I don’t think so. Like Project Gutenberg has been saying since the mid 1990s, “Free Winnie!”.

Wesley R. Elsberry

Falconer. Interdisciplinary researcher: biology and computer science. Photographer. Husband. Christian. Activist.