Policy makers intending to promote creativity have always overemphasized the importance of “copyright protection” without addressing the wide range of other concerns that are necessary to consider when making comprehensive innovation policy. In an era where everyone, with the use of their computer or mobile device, can easily be a consumer, creator, and a critic of art, we can not afford to ignore this digital ecosystem of artistry and innovation. Yet copyright remains completely out of touch with the reality of most creators today, while the rules that do pass seem to stray even further from addressing their needs.
Last year, we identified European copyright reform as one of the main developments to watch for in 2015, and barely a month into the year this debate is already heating up. Coinciding with the release of a draft European Parliament report written by Julia Reda, Member of the European Parliament for the German Pirate Party, Copyright for Creativity (C4C) have also released their own new Copyright Manifesto this week.
Over the past two years, as talk of copyright reform has escalated, we’ve also heard complaints about the supposed expansion of fair use, or “fair use creep.” That kind of talk woefully misunderstands how fair use works.
Fair use provides breathing space in copyright law, making sure that control of the right to copy and distribute doesn’t become control of the right to create and innovate. New technologies and services depend on the creation of multiple copies as a matter of course. At the same time, copyright terms cover works many decades old and copyrighted software appears in more and more devices. Taken together, these developments mean the potential reach of copyright may extend ever further. Fair use makes sure that the rights of the public expand at the same time, so add-on creativity and innovation can continue to thrive. In other words, “fair use creep” is an essential corollary to “copyright creep.”
It’s Copyright Week
It may seem odd to say so during Copyright Week, but copyright in itself isn’t very important. Sure, EFF expends a lot of time and energy arguing about copyright law, and some of our adversaries spend even more. But we don’t do so because copyright has any independent value. Rather, its value is derived from its ability to “promote the Progress of Science and useful Arts” (in the words of the US Constitution), as well as to promote other important values such as the rights to freedom of expression, privacy, education, and participation in cultural life.