A post over at IP Central is illustrative of two important fallacies in thinking about copyrights.
Solveig Singleton is here discussing Fair Use, and the prospect of narrowing Fair Use (odd at a time when most thought seems to be centered on expanding Fair Use rights, but that’s a tangent). In this post, she only makes note of transaction costs, and never mentions human rights limitations that her proposal implies:
Fair use is certainly a concept compatible with markets. Given the difficulty of working out some deals due to high transaction costs and the low amount of value at stake, copyright law needed an exemption. If one wanted to quote an author briefly in another work, for example, and one was told one needed to negotiate a license to do so, one would be more likely to give up the effort than pursue a license. Thus, fair use.
But once it becomes possible to negotiate a license cheaply and almost instantaneously, one doesn’t necessarily need the concept to protect the use. Neither need the use be free in order to protect the use. If the market allows one to choose between buying a copy that allows cut and paste $.05, or a copy that does not for $.01, there seems no danger that anyone who wants to make trivial excerpts will be prevented from doing so. This seems pretty commonsensical; it has been recognized in case law.
The only information that is allowed to enter into the analytic process is information concerning markets and market results. In the second paragraph ‘free’ only means free as in beer, not speech. As copyright is a special exception to what should be the default case of freedom of speech, it is impossible to separate any restriction on the freedom of speech from human rights. But there is no discussion in this post about human rights. And that is not remarkable; it is indeed hard to find a single post at IP Central which acknowledges that issues of copyright and fair use have any other measure than that of economic value. So this is a long-running fallacy over at IP Central.
The second fallacy springs from the first, and that is the tendency to view the normal assumed default state for any speech is that it is protected by copyright, when, in fact, speech that can be protected by copyright is the minority of speech. Much can never be protected by copyright, for example, facts can not be protected by copyright. Before 1976, any speech that did not specifically include copyright notice was not protected by copyright. Thus, the normal default of any speech was copyright-off. AT&T found out this out the hard way during their litigation with University of California over Unix. Hence my response:
Copyright is a special case exception to the freedom of speech, and as such, fair use is not the ‘exception’ to the rule. Rather copyright is the special exception to the general rule of freedom.
Thus, fair use exists for reasons outside of the market, i.e., as part of fundamental human liberty and rights. Your economic arguments are based on a fundamental informational exclusion of human rights
John Gordon makes a good point in his response when he notes, that due to the ease of reproducing things by the internet, their has been a de facto increase in the scope of copyright:
On the other hand, fair use is in many cases the only way to defend uses which in the pre-digital era were completely outside the realm of copyright (eg, reading a book) and are now nominal copyright infringements (eg, reading a web page, which can’t be done without causing a copy to be made). In the digital world, where just about every possible use of a creative work involves making a copy of it, the scope of copyright has expanded greatly, and fair use is often the only defense that could possibly apply. That suggests a reason for expanding, or at least preserving, fair use – unless you believe that the act of reading is one of those things that was unregulated only because we hadn’t yet found a way to charge for it.
This suggests for me that the correct course is to expand greatly the fair use rules, with exceptions for things fixed in computer memory, as well as expanded fair use rights, with clear bright line rules so the fear of prosecution would be minimized.