Georgia earlier reported on the CCIA study describing the economic value of fair use. That study and responses to that study have shed light on a few areas.
We know the basic theory of copyright in the U.S. Given an exclusive monopoly, creators will profit from their works. Therefore, creators will have an economic incentive to continue to create. The public benefits through access to those works via exemptions (including fair use) and the public domain. The theory deals with financial incentives, and a great deal of copyright research comes from economics or is framed in such a way that makes economics the most important value. I don't believe that framing is necessarily sufficient when looking at copyright, but it's interesting to see some of those methodologies applied in this way.
The World Intellectual Property Organization issued guidelines for industries to determine how much copyright law contributes to a given country's economy. The CCIA study basically uses those same guidelines (with a few modifications) to determine the value of fair use to the economy. It's an interesting approach for a few reasons.
If it's assumed that the WIPO guidelines are fair and accurate, then there's a good chance that these figures are at least as valid as the copyright groups'. Patrick Ross of the Copyright Alliance soon issued a response to the study.
First, he states that creators and artists recognize the value of fair use. I'm certain that many do, since as we all know, a great deal of art is derived from other art or incorporates or builds on existing art. However, he frames the CCIA's work as pitting fair use against creators, a notion which I find highly questionable. Fair use is available and used by everyone, including creators. This universality of fair use is especially true under the current system of copyright law, in which we are all the creators of original copyrighted works. Even if he was only referring to those that make all of their income due to copyright (insert typical attorney joke), I don't believe that the statement holds.
Then he goes on to say that there is no fair use without created works.
"There is no fair use without original creative works. Period. It is like trying to imagine a librarian without books. All those who embrace fair use must understand this and support creators who are producing the works they so prize. All those who embrace fair use must also recognize that any device, such as an MP3 player, that can be used to practice fair use, is in fact designed to work with original creative works. An MP3 player without any songs on it is good for nothing but propping up a wobbly table.
First of all, I'll take exception to the analogy- people try to imagine "the bookless librarian" all of the time. It's not likely to happen, but it's certainly something people imagine. :P
Second, though, I was a bit confused by these statements. It's not really a response to anything put forth by the CCIA. The CCIA isn't saying that we shouldn't have copyright, or that copyright isn't important to creators or to the economy. They're saying that fair use is also important. Furthermore, although a given MP3 player is designed to use creative works, that fact doesn't change the importance of fair use, or the role of fair use in the creation of new works- or for that matter, really remark on the copyright system. I'd venture that we'd still have original, creative works for that MP3 player without the current copyright system in place- and I'm certainly not a proponent of abolishing copyright.
Additionally, it's just as easy to say that there would be no copyright without fair use. That's a bit simplistic, but copyright was created for the ultimate benefit of the public. The benefits to the public- including fair use- are a necessary and vital part of our copyright system. We need both.
More importantly, we can look at societal costs and benefits in other ways, as Georgia mentions in her earlier post. We haven't looked at free speech, or access to information, or cultural significance, or preservation, or any of the many other considerations that we need to examine.
