Re: Copyright and heresy

On Thu, 9 Feb 1995, Wendy Gordon wrote:
>
> I'm very surprised to hear you say that our fair use doctrine originated
> with the British "fair dealing" doctrine. I'd like to hear more about
> why you say that.

OK. Before I go on, I'm sorry if I have in some way offended you by suggesting that US fair use owes anything to English law. I simply wanted to note that fair use and fair dealing both grew out of a common heritage of very early case law. It has changed dramatically both in US and other common law jurisidictions, but is essentially concerned with similar things.

> Most histories of fair use-- corroborated inter alia by my own researches
> on the subject -- seem to locate its origins in American cases like
> Folsom v Marsh, which were decided back when it wasn't an infringement of
> copyright to make (most) derivative works. That is, under early U.S. law,
> the copying work did not infringe so long as it was a creative adaptation
> (including abridgements!), addressed to a different market, and not a mere
> "facile use of the scissors"
>
> In the earliest days (1790) our statute gave copyright owners only the
> exclusive rights to "print, reprint, and vend". Only gradually did the
> proprietor gain control over abridgements, translations, performances, and
> other CREATIVE uses of the work. So as I see it, fair use came out of the
> limitations of federal copyright's early exclusive rights, as a natural
> outgrowth of the early statute's structure-- it was a need to decide WHAT
> COUNTED as an infringement, an issue hardly closed shut today.
>
> Could you tell us more about how you see the indebtedness arising? Did
> the early US cases cite the "fair dealing" cases?

You (and most US commentators) cite Folsom v Marsh as the "origin" of fair use in the US. I don't have a copy of that case up my sleeve at the moment, but I quickly referred to Patry's book on Fair Use which states (p21) that Justice Story reviewed Mawman v Tegg (an English case), Wilkins v Aikin (an English case), and Roworth v Wilkes (an English case). There are also English cases on fair abridgement and fair quotation (etc) dating from prior to the first US copyright statute in 1790. OK, so this is old stuff, but it is nonetheless part of the origin of the US law of fair use. If you wish to ignore the development of the doctrine in other jurisdictions, that's your business. I personally consider it only sensible to look at US fair use, UK fair dealing, Canadian fair dealing and any other comparable provisions in other jurisdictions to see how the same _issues_ are being addressed and to find arguements which might translate well into my own jurisdiction (Australia).

Fell free to ignore Hubbard v Vosper, it's only an English case on fair dealing which deals expressly with the defence of fair dealing for the purpose of criticism or review in the context of an attempt by the Church of Scientology to suppress writings critical of its teachings. Clearly this is not at all relevant to the concerns of the EFF as they seek to deal with exactly the same problem. Apparently fair dealing for the purpose of criticism or review and fair use "for purposes such as ... criticism" have nothing to do with each other.

Bye for now.
Jamie

Jamie Wodetzki
<j.wodetzki[_at_]nla.gov.au> Received on Fri Feb 10 1995 - 04:44:51 GMT