Ethics at Work: Copyrights include a right to copy

New trade complaint keeps fair use thriving.

asher meir 88 (photo credit: )
asher meir 88
(photo credit: )
In recent columns we discussed the "open content" movement, which wants to make more commercial content freely available to the public by weakening intellectual property rights. I take the position that the current IP regime, which saw the rise of all the fantastic open content available, is adequate. I don't disagree with the "free culture" gurus that in a 21st century networked-world information needs to be liberated, I just believe that current fair use protections are adequate to liberate it, and I am not worried, as others are, that these protections are being eroded. I think my position is reinforced by a complaint filed this week to the US Fair Trade Commission by an industry association including Internet powerhouses Google and Microsoft. The complaint asserts that aggressive copyright protection notices are misleading, and may deter or "chill" even permissible uses of broadcast content. Currently, many programmers broadcast copyright warnings to deter viewers from taking shows and saving them, viewing them outside the broadcast area, posting them on the Internet, etc. For example, the National Football League warns viewers that, beyond private use, "Use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent, is prohibited." (Baseball games have a parallel announcement.) This is not quite accurate, as we will now explain. "Fair use" provisions allow limited rights to copy copyright material. For example, it is permissible to make short citations from a copyright work in another publication, as I do all the time in this column. It is generally permissible to make a small number of copies of a small part of a work for private use. In most countries, if you buy a CD, you are allowed to make copies of the tracks for your own use on a number of devices; for example, one on an MP3 player and one on your computer. (I do this too.) There are a few ways of understanding the ethics of fair use. One is that, legally, copyright is not really a "right." The US Constitution explicitly states that copyrights, patents etc. are meant to serve as an incentive to "promote the progress of science and the useful arts." So there is no reason to construe these rights beyond what contribute to such progress. In other words, the original mandate for creating such a right limits it to what serves the public interest. Another approach is to point out that copyright gives the author the right to sell his creation. But that presumes the right of the purchaser to use it. A car salesman has no right to encourage car sales by telling me that the car is mine as long as I don't give rides to friends. By the same token, a publisher has no right to encourage book sales by telling me that the book is mine as long as I don't lend it to friends. That right is part of the ownership I acquire by paying. US courts have ruled that this includes seeing a broadcast show at a different time, and is generally construed to allow people to put content on numerous devices. In Canada, it includes the right to make copies for friends. (In return, the largest copyright owners are reimbursed through a tax on the devices.) Therefore, the NFL cannot use the law to prevent me from making a copy of the game to view later on, or to prevent copying a short passage for private use or for a review, or to make limited academic use, or create a parody. This complaint will certainly help keep fair use alive. The FTC may accept the complaint and order copyright owners to inform viewers that they have fair use rights. After all, some publishers already state that the work may not be reproduced "except as permitted." Perhaps the announcement for sporting events will soon include similar language. Even if the FTC does not agree that current language is misleading, the filing itself helps inform viewers of their fair use rights. The anti-business paranoia of the Open Content movement notwithstanding, the great influence of commercial firms does not always mean a conspiracy against the citizen. Just as content owners use their influence to try and strengthen protections, equally powerful companies such as Google and Microsoft are trying to moderate them. Currently, the digital consumer has adequate protection to enable fair use of digital content. The author is research director at the Business Ethics Center of Jerusalem (, an independent institute in the Jerusalem College of Technology.