Something momentous happened to the
arts and sciences in this country in September of last year. We didn't read
about it in the newspapers, and there was no discussion in parliament before
the change occurred. I found out about three weeks ago in the pages of a computer
magazine, which is where I usually learn about my civil liberties - and restrictions
thereto - these days.
What happened in September 2003 was the introduction of Statutory
Instrument No. 2498, otherwise known as the Copyright and
Related Rights Regulations 2003. In addition to changing
British law so as to apply the most restrictive construction
of copyright law to the Internet, Statutory Instrument No. 2498 abolished
the concept of "fair use" for any and all commercial
You may not spend a lot of time pondering the concept of fair use, but it has
(or has had) an enormous effect on the media environment we inhabit -- the
way we receive information, the kind of information we receive, and the way
we're educated. Fair use allows, or allowed, a text book writer to include
a few lines from a Guardian review of another book, or of a film or play. It
allowed Michael Moore to include footage of the World Trade Center burning
in BOWLING FOR COLOMBINE, and footage of president Bush's goat episode in FAHRENHEIT
The Guardian owns the copyright of the review (or else the
review's author does). The TV production company or network
owns the news footage. But the public interest - the free
and wide dissemination of important information, in this
case news information - was served by the concept of "fair
Fair use is still permitted in this country for news reporting
purposes. But even in this case the Statutory Instrument
limits fair use to material that "has
been made available to the public." "Unauthorised" release
of a work to the public now means that no fair use applies. It doesn't
take a fine legal brain to see the can of worms this opens: what if a newspaper,
or Panorama, reveals secret documents showing General Dynamics' plans for
the Star Wars missile system, to be deployed in the UK?
It's in the public interest for us to know, of course, but
the information is also General Dynamics' intellectual property,
fully protected under this enhanced copyright law. If the
corporation, or indeed the Pentagon, want their secrets kept
secret, there's nothing to stop them suing the paper, or
the BBC, for "theft" or "piracy" of their
"Piracy" is, of course, the rationale behind this huge change to British
copyright law. The Patent Office makes its hatred of "pirates" very
plain, and claims that scurvy privateers deserve no protection under the confusing
old definition of free use: "issues of equity or fairness do not arise
when considering copyright piracy or other infringement of rights."
But this is debatable, as well. In the last ten years, certain companies -
mainly the Hollywood studios and the big software and music corporations -
have lobbied national governments and international trade bodies to extend
periods of copyright, and to extend copyright and patent law into areas where
previously they did not exist.
There needs to be a rational discussion as to whether this
war against "piracy" is
any more right-headed or likely to succeed than the war on "terror." Wars
against nouns suggest confusion on the part of the agressor, and continuous,
forceful action against an unidentified, permanent threat. New media are
by definition new. No one can say what art forms will come out of them,
nor what new income streams will be created. For Hollywood and Bertelsmann
to lay claim to this new cultural territory on their own terms isn't necessarily
the best way to maximise profit, or make good art, or benefit the community.
Another world is possible, as Lawrence Lessig demonstrates in his book
FREE CULTURE -- which deals with the enormous benefits of a permissive
creative culture, as opposed to a restrictive one.
Even the Patent Office suspects something is wrong, and that the new, improved
copyright law goes to far: after the obligatory blather about showing no mercy
to pirates, their site admits there are serious civil liberties implications
in the new law, and suggests that legislation may be necessary to redress the
The new law has certainly aggravated people in the sciences. The Royal Society
published a paper entitled KEEPING SCIENCE OPEN: THE EFFECTS OF INTELLECTUAL
PROPERTY ON THE CONDUCT OF SCIENCE, which says that less copyright restriction,
rather than more, is essential for science to flourish in Britain.
The Royal Society paper points out that the limitation of
fair use to "non-commercial" purposes
gives rise to uncertainty, is not useful, and is complex to operate. Who
benefits from it except for IP lawyers and those corporations
large and rich enough to sue?
Justly concerned, the Royal Society considers the abolition of fair use a disaster.
Their position is understandable - they're scientists - but a bit too narrow.
I think scientists and artists need to get together here, and bang heads jointly,
since the abolition of fair use is a disaster for the development of the arts
Let me give three examples:
1. A student writes a degree paper, which includes (as all research
must) a variety of quotations from other authors on her subject. This is
permitted under the new restrictions, since it is academic research for
purpose." She gets a first class grade for her paper, which she now
wishes to publish. If she receives a fee for publication, or if the publication
is sold, she must A) contact all the copyright holders she has quoted,
and arrange payment with them, B) rewrite the paper, removing all other
authors' quotes, and crippling her article.
Everybody knows - or should know - that authors don't make money out of academic
publishing. The small fees and small print-runs won't permit large trawls for
copyright holders or large payouts.
So academic writing, and semi-academic books about film and the arts, are going
2. A filmmaker - working on a dramatic feature or a documentary - uses temporary
music as soundtrack and background music, in order to get an idea of what kind
of music works with the film. Temporary music is also needed when a film is
screened for the studio or the investors - especially when money is tight and
the composer hasn't yet been hired. There's an aesthetic danger in this, and
every film composer will tell you of a director who fell in love with the temporary
music; nevertheless it's been the industry norm to use bits of other film soundtracks,
on a temporary trial-and-error basis, while working towards their finished
Standard industry practice has now become illegal. The Liverpool lads who sent
me a DVD of their unfinished, low-budget feature a couple of weeks ago have
broken the law. They're engaged in a commercial enterprise (all features are
commercial, by definition - no matter how low-budget, how wing-and-a-prayer)
and they've taken music from existing features (some of them directed by me!)
and used it as temporary music for their project.
These young filmmakers are using the copyright soundtracks of Pray For Rain
as part of a commercial activity. Fair use would have been their excuse, till
September 2003. Now they have no excuse, and I shall sue them.
Well, of course, I won't. I'm flattered that they liked the
soundtrack music from my a couple of my films enough to temporarily
re-use it. And I've put them in touch with Pray For Rain,
the composers, so that they can hire 'em if they get completion
funds. Their "fair use" of Pray For Rain's
soundtrack harmed no one, and may generate financial and creative benefits.
The abolition of fair use in this instance benefits no one, and restricts
3. In the area of music, the consequences for creativity
are equally damaging. For more than twenty years we've grown
used to music sampling, to large or small homages or analogue/digital
borrowings. Consider how Big Audio Dynamite sampled film
dialogue on their first album; in the 80's, Mick Jones and
his colleagues were protected by the right to fair use when
they sampled the scratchy voices of Eli Wallach & co, THE BAD & THE
UGLY. The resulting songs harmed no one, expanded the possibilities
of the medium, and contributed to the sales of old Spaghetti
Western video tapes.
Such sampling is now illegal, and United Artists studios can sue the successors
One country which
still has liberal "fair use" law is the United
States. Even while the MPAA and RIAA have written the the
copyright law of the Internet, they haven't been able to
restrict fair use, in print or in the digital arena. William
S. Strong, the US's foremost copyright lawyer and author
of The Copyright Book, warned in the Columbia Guide to
Digital Publishing against treating digital media differently
from print or tape copies, because:
"what the fair use doctrine cares about when assessing market impact is
whether the use will supplant the market for the original work, not whether
it will, as an unintended by-product, enable scofflaws to avoid copyright fees...
the argument is dangerous, because, taken to its logical conclusion, it could
seriously undermine the role of fair use in our culture, and that would have
What the top US copyright expert warned against, we have
just done - without publicity, without debate. "No court has yet suggested that any such revisionism
is called for," Strong continues, "and we should hope none will." No
court has suggested such revisionism in Britain, either. Yet it has stealthily
According to the Patent Office website, Statutory instrument No. 2498 was made,
or decreed, or however these extra-parliamentary dictats come into being, so
as to harmonise British intellectual property law with that of the EU.
Yes, but - why? Other British laws are not in harmony with EU law - the right
to a fair trial, or the right to join a union, to strike, and to picket - and
the government and Whitehall seem quite happy with the disparity.
Why, specifically, was copyright law "harmonised" when
other laws are not? What media corporations lobbied for
the extension of copyright law, and the abolition of first
use, in Europe?
As a result of this change in the law, American creators,
scientists, and academics currently enjoy a right that Europeans
don't. But that may change. The same media corporations which
lobbied for a more restrictive law in Europe can now appeal
to the World Trade Organisation. If the restrictive EU law
isn't overturned, the studios and record companies can demand
- via the WTO's Agreement on Trade-Related Aspects of intellectual
Property Rights (TRIPS) - that US law be "harmonized" with
At that point, shedding a crocodile tear, Pres. Bush will have no choice but
to insist that US copyright law match the EU rules. American academia, scientists,
and documentary filmmakers will be in the same boat as the Europeans are now.
Goodbye fair use, goodbye Michael Moore, hello new editions of The Copyright
Book and The Columbia Guide to Digital Publishing, explaining what rights American
authors, scientists and artists don't have any more.
The assault on the "fair use" doctrine - our right, up until last
September - has worldwide implications. If we don't fight for it here, in the
next year, "fair use" could easily be lost to creators, artists,
and scientists worldwide, and gifted, by compliant governments, to the
multinational corporate beneficiaries of the WTO.
The Royal Society recommends that Statutory Instrument No.
2498 and the abolition of "fair use" be renegotiated
when the Copyright Directive 2001 is reviewed in 2005.
A consultation on changes to the EC Directive is currently
under way. The government will certainly hear from British
scientists, but they should also hear from the creative
communities, including film, music and television, and from
all branches of academia.
Anyone interested in having his or her voice heard should
contact: Industry Minister (Hewitt), Science Minister (Sainsbury) & Culture
Minister (Jowell), as well as the CEO of the Patent Office
(which helps formulate IP policy).
Mention Statutory Instrument No. 2498 and tell 'em what
you think of it. Communicate your thoughts about "fair use." And
let 'em know if you'd like to see a less-restrictive, more-permissive,
fairer Copyright Directive in 2005.
You're welcome to send 'em a copy of this article, though a reference to the
Royal Society paper on the effects of IP policy on science would probably be
Save Fair Use! You'll be glad you did.
You can find the Royal Society's report at here --
click "Intellectual Property"
Statutory Instrument 2003 No. 2498 can be read here
The UK Patent Office's page about the EC Copyright Directive is here
The British Library also has information on the changes here