©ollectanea

Slashdot reports a study commissioned by the Computer and Communications Industry Association (CCIA) on the economic value of fair use. Peter Jaszi, American University Washington College of Law was involved. Peter has been a strong proponent of fair use, and one who has taken decisive actions over the last several years to really make a difference in how we perceive and rely on fair use. The Best Practices document for Documentary Filmmakers is a superb example of such action.

This latest effort reports that fair use adds more to the economy than the copyright industries do, as the figures in the snippet at Slashdot illustrate. But what kind of analysis lies behind the admittedly eye-catching numbers? The study identifies certain economic sectors as fair use industries, industries for whom reliance on fair use is critical to their business, and analyzes the contributions of these industries, their growth, how many people they employ, and other measures. It concludes that fair use contributes to the economy in some proportion directly related to the value of these industries. I have not read the whole report yet, but it certainly is an interesting angle.

One of the sectors identified as a fair use industry is education institutions. Statistics about the contribution of higher education, in particular, to the economy are probably very widely available. I know that we have had to make the case that dollars invested in us are repaid many times by economic growth (nevertheless, we do not manage to reverse the trend towards less and less investment from our state legislature each session). But this set of statistics has not until now been brought to bear on the question of the extent to which our reliance on fair use actually benefits the economy.

Lolly Gasaway reported recently on the Perfect 10 v. Google case, how the court really looked at the social benefit provided by the alleged infringers, departing somewhat from a focus on the harm caused by the infringement. I followed up with a short article in CIP's Newsletter, further expanding on this theme. The court's analysis, as much as its ruling, was very important for its shift in emphasis. It is this shift in emphasis that I think suggests the possibility of more solidly undergirding the scope of fair use involving nonprofit educational uses. Still, it is important to note that there were only speculative damages to counteract the public benefit of Google's fair use in Perfect 10 v. Google. Where copyright owners may have little difficulty demonstrating very real harms to their licensing revenues, the outcome may not be the same.

This report does provide food for thought in the recently invigorated struggle to push back the heretofore shrinking boundaries of fair use. It will be interesting to see how these findings might be practically implemented.