Re: Re: Fair use

Berbard Katz' observation -- that you never know for sure what is fair use until, after you make a judgment, the copyright owner disagrees and sues you, and a judge decides, suggests the same flaw we have in obscenity law in the U.S.: It remains legal until the time the judge or jury says otherwise. The difference is that under obscenity law, the courts have always presumed the work to be a constitutionally protected exercise of First Amendment rights until the verdict, whereas under copyright law, the burden is placed on the defendant to prove fair use.

It would be very healthy if we could get courts to recognize that the Constitution requires that the burden remain at all times with the one who claims exclusive rights, since those are the claims that derogate from the First Amendment. Plus, this would remain consistent with the Copyright Act given that, by definition, the exclusive rights conferred are all "subject to" section 107 (fair use).

John

John T. Mitchell
http://interactionlaw.com

On Mar 3, 2006, at 1:40 PM, Bernard Katz wrote:

> On Tue, 28 Feb 2006, Samuel Murray wrote: wrote:
>
>> ...[snip]... The way I understand it, "fair
>> use" is not something which is either granted or withheld by the
>> author of work. Instead, it is a concession granted by law or in
>> terms of the principles of fairness itself. There is nothing an
>> author can do, legally speaking, to prevent the use of his work if
>> such work is deemed "fair use". Even if the author would try to
>> prevent copying, and fails to do so, and the copying would be
>> "fair use" type of use, the fact that he had attempted to prevent
>> the use would have no legal effect on the measure of fairness of
>> "fair use", am I right?
>
> I also agree that Samuel Murray almost has it completely right. But
> the difficulty here, as I see it in both "fair use" and "fair
> dealing" is that the decision as to whether a specific use is
> considered "fair" or not lies in the hands of a judge, AFTER use
> has been made of the work. A user may have a pretty good idea,
> based on the criteria already discussed, as to whether the use
> about to be made is fair, but said use is not actually deemed to be
> fair until a suit is brought and judgement rendered. Thanks to our
> Australian colleague, I can now be certain that the Australian Act
> gets around this initial degree of uncertainty for users quite
> nicely. As has been pointed out, however, what had been designed as
> a minimum to be considered fair dealing (ie. at least this much)
> has gradually turned into what to all extents and purposes is a
> sort of 'standard' of fair dealing.
>
> Cheers,Bernard Katz, former head, Special Collections and Library
> Development
> McLaughlin Library, University of Guelph
> author, descriptive bibliog. of L.M. Montgomery's books (in
> progress)
> and former chair, Ontario Library Association Copyright Task Force
>
> #############################################################
> This message is sent to you because you are subscribed to
> the mailing list <CNI-COPYRIGHT[_at_]cni.org>.
> To unsubscribe, E-mail to: <CNI-COPYRIGHT-off[_at_]cni.org>
> To switch to the DIGEST mode, E-mail to <CNI-COPYRIGHT-digest[_at_]cni.org>
> To switch to the INDEX mode, E-mail to <CNI-COPYRIGHT-index[_at_]cni.org>
> To postpone your subscription, E-mail to <CNI-COPYRIGHT-null[_at_]cni.org>
> To resume mail list message delivery from postpone mode, E-mail to
> <CNI-COPYRIGHT-feed[_at_]cni.org>
> Send administrative queries to <CNI-COPYRIGHT-request[_at_]cni.org>
>
> Visit the CNI-COPYRIGHT e-mail list archive at <https://
> mail2.cni.org/Lists/CNI-COPYRIGHT/>.
>
Received on Mon Mar 06 2006 - 21:35:50 GMT