History, heresy, and flame wars

>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.

Jamie Wodzetski responded, among other things:
>
>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.
>

Wow. I never thought the historic origins of fair use would be such a contentious issue as to warrant the use of sarcasm.

Seriously, I'm not what the disagreement is here. I'm willing to believe that US fair use doctrine, like much of our copyright law, originally derived from our English heritage. But it seems to me that Professor Gordon has raised a good question about the applicability of old UK precedents to US law today, particularly in view of the (more recent) exclusive right to prepare derivative works.

On that latter point, my admittedly limited understanding of the US cases is that the fact that a critical review is negative, resulting in lost revenue for the copyright owner, does not preclude a finding of fair use. If the use is transformative, it seems to me that the copyright owner can prevail only if she can demonstrate that her lost revenue stems from diversion of sales (or from the accused work cutting into the market for derivative works), rather than from reduced consumer interest in the product as a whole.

Mark Lemley
Assistant Professor
University of Texas School of Law
mlemley[_at_]mail.law.utexas.edu Received on Fri Feb 10 1995 - 21:43:52 GMT