Re: ELDRED (Copyright limiting speech)

From: Robert A. Baron <robert[_at_]studiolo.org>
Date: Wed, 29 Jan 2003 08:28:46 -0500

At 05:33 PM 1/27/2003 -0500, Joseph Pietro Riolo wrote:
>In the former, you can always express ideas that are found anywhere freely
>in your own words but you cannot use copyrighted expressions that are not
>yours. In the latter, you can use or copy copyrighted expressions that
>are not yours in some circumstances that satisfy the criteria for the Fair Use.
>
>In light of that view, DMCA is becoming more problematic because it is
>attempting to eliminate the Fair Use which in turn restricts free
>speech. So is Digital Rights Management (DRM).

Fair use as an operable concept is fairly well finished. Think of fair use as consisting of two separable rights (okay, it is not a right, it is an affirmative defence), but until a fair use is proven to be infringing, it is supposed to operates as if it is a right.

1. There is the private right -- the right to take copyrighted materials for personal, non profit use, and
2. there is the public right, the right to share those materials with people who may be paying -- an example being the right to quote small segments of copyrighted works in publications.

The DMCA, as everyone knows, kills of the first of these in the electronic realm. The second is more problematic. Publishers these days insist on obtaining permission for every use of copyrighted content -- even small quotes. The reason is clear. They can't afford the risk, especially these days when publishing is so oppressed. This places a lot of power into the hands of the copyright holder -- the power to control speech by denying permission to use certain works. In the world of academic art history there are frequent examples of "permission denied" in order to control speech.

At the upcoming NINCH/College Art Copyright Town Meeting (New York) the use of copyright for these purposes will be explored by Christine Sundt and Siva Vaidhyanathan.

An announcement and an agenda for this program is available at the following addresses:

http://www.studiolo.org/IP/2003NYTM/index.htm

Robert Baron

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Robert A. Baron
mailto:robert[_at_]studiolo.org
http://www.studiolo.org Received on Wed Jan 29 2003 - 13:44:43 GMT