Meera Nair

Jaszi on fair use

In Posts on January 28, 2014 at 6:58 pm

Earlier today, Professor Peter Jaszi of American University’s Washington College of Law gave testimony concerning fair use to the U.S. House Judiciary Subcommittee on the Courts, Intellectual Property and the Internet. Jaszi is undoubtedly one of the most knowledgeable sources on the subject, with more than forty years of experience in the field. He credits his early teachers, Benjamin Kaplan and Lyman Ray Patterson, for their prescience in forecasting the importance of fair use to American advancement, particularly in what we now describe as the digital age.

In his testimony, Jaszi recounts how an early pronouncement of fair use as a right earned him an immediate rebuke but notes that both the courts and Congress have proven him correct (details on page 3). He acknowledges that the early years following codification of fair use into American law through the 1976 amendments did not bode well. However, he happily reports that fair use’s fortunes are much better: “Today, fair use is working!” That success owes a great deal to the federal courts which removed commercial exploitation as the anchor of fair use analysis, and gave more consideration to the purpose of the use. But Jaszi also emphasizes that willingness by the courts to think broadly would have come to naught without the user communities who were:

… willing to step up and make their own contribution to develop fair use by employing it and – where necessary – defending its exercise. Many groups deserve credit here: on the one hand, of course, libraries and tech startups, but also their occasional sparring partners commercial publishers and entertainment companies (p.4).

Jaszi’s testimony is comprehensive yet succinct; in less than eight pages of text he explains the  early 21st century misconceptions surrounding fair use and offers clarification. He leaves no doubt as the value of the exception: “The fair use doctrine adds materially to our cultural choices, our learning opportunities, and our access to innovation (emphasis mine).” His message to the members of the Subcommittee is that fair use does not need legislative reform, although it could benefit by some measures of support to facilitate further use of the exception thereby securing more benefit to the United States as a whole.

Finally, Jaszi raises the principled concern that current U.S. trade negotiations, particularly with developing countries, leave those countries with “lingering and crippling doubts” as to whether they may emulate the American example. Reminding all that nations are interwoven in today’s world-economy, Jaszi asks: “…whether this one-sided approach is really in our national interest – and (beyond that) whether it is ethically defensible?”

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