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FAIR DEALING AND THE PURPOSES OF COPYRIGHT PROTECTION
AN ANALY SIS OF FAIR DEALING IN THE COPYRIGHT LAW OF THE U.K. AND CANADA
by
CARYS JANE CRAIG
A thesis submitted to the Faculty of Law
in conformity with the requirement for
the degree of Master of Laws
Queen's University
Kingston, Ontario, Canada
August, 2000 National Library Bibiiothèque nationale 1*1 of Canada du Canada Acquisitions and Acquisitions et Bibliographic Services services bibliographiques 395 Wellington Street 395. rue Wellington OttawaON KlAON4 Ottawa ON KIA ON4 Canada Canada YOU~Me Votre réfemnce
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The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seIl reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique.
The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimes reproduced without the author's ou autrement reproduits sans son permission. autorisation. Tlrc -focus of tlzis thesis is the fair dealing defence in the British and Caizadiarz cop~-~-ightsystenrs. The pzxpose of the thesis is twofold: first. to reveal the iirudeqrrncies of the defence in its present statutoty fom; second. to reveal the rekrrionship benveetz these inadeqriacies and a larger failure to understand the nature arrci r-ofe of fair dealiizg iuithirz cop-vright policy. With respecr to the first irzqicin, the thesis argues that the present fair dealing provisions in the U.K. and Canada are sturrrror-il\. I-estrictive, r-igidly limiïed in application, and crippled with arbitrary and pedmtic distiizctiorrs. These provisions are compared unfavourably to the LIS fair use ~rzocief. iv/zic/z allows for a flerible and inclusive fair use inqzriry, pernzi~tïitg reasoized arralysis and princz@led consideration of the policy issues at stake.
T/zc thesis is not, ho wever, corzcer-ned simply with legislative reform. Rath et-. ivith respect to the second inquiry, the thesis argues that fair dealing and, to some extent. fair use. srrffer at the harzds ofa common mischaracterriation of the rationale behind the CO~JV-ightystern. Mistaken plzilosop hies of copyright protection, grounded in inispiaced rzotions of moral or natttral entitlement, pervade copyright rhetoric and disgrise copyeht 's firndamer2taZZy instn~mental nature. Vfsions of 'Romantic Aurlzor-slzip ' and Lockean assunzptions regarding property acquisition lead to an Nzappr-opr-iate 1-iglzts-based and author-oriented understanding of copyright law. Szzch an rrrrderstandïng obsczu-es the origirzs of copyright and the public goals that iie at its cor-e, The inevita ble conseqtrence is the over-protection of copyright holders ' Uz terests at rhe esperzse of rrset-s and sociery.
TIZCfltesis attempts to show that by relocating copyright within its instntrnental agcilcia arzd r-e-imagining its social and normative aims, we can establish a more appropriate theoretical framework with which to justzfj and explain the copyright s-VA-rmi.Within tlris framework. we rvill be better placed to identzfi the pirrposes belrimi cop-VI-ightas an incentive systern. In tum, this will allow us to recognise the rolc. of:fair- dealing as an integral nrechanism within the systern and not merely as a niar-ginrrl exception thereto. rnight then be possible to develop a functional urzdcr-standing of fair dealing consistent with the intent behind the doctrine and reflective of its importance withirz copyrr'ght policy. 1 would like to thank Denis Magnusson for sharing with me bis knowledge and insight in the field of copyrisht law, and for the confidence he displayed in me throughout the process of writing this thesis. 1 am gratefül to Mark Weisberg for his encouragement and Phyllis Reid for her help and dedication.
1 would also Lks to thank my family in Scotland for their love across al1 the miles, and for supporting my choices no matter how far away they take me. 1 would like to express my extreme gratikde to Conor Fitzpatrick and the whole Fitzpatrick family for their affection, their unfailing support and their belief in me. Many thanks also to my wonderfil fnends, both at home and in
Canada, wliose fiîendship, they know, has been invaluable to me. Special thanks go to Ruth
Dukes, Alan D. Stalker, Claire McDaid and Emily Grabham. TABLE OF CONTENTS
CHAPTER 1: AN HXSTORICAL OVERVIEW
1. The History of Copyright A. The Statutory Inception of Copyright i) The Historical Context ii) The First Statutov Copyright System iii) An Analysis of the Statute of Anne B. The Role of Case Law in the Development of C 1yright i) The Question of Literary Property ii) The Millar v Taylor Decision iii) The Donaldson v Becket Decision C. Conclusions on the History and Development of Copyright
II. The History of Fair Use A. Locating Fair Use within Copyright Policy B. The Development of Fair Use in the Courts i) Fair Abridgement ii) The Arriva1 of Fair Use iii) The Rationale behind Fair Use C. Conclusions on the History and Developrnent of Fair Use
III. A Brief Conclusion on the History of Copyright and Fair Use
CHAPTER 2: FAIR DEALING IN U.K. COPYRIGHT LAW
1. Introduction: A Matter of Principle
II. U.K. Legislation on Fair Dealing A. The Statutory History of Fair Dealing B. The Current Fair Dealing Provisions
III. Case Law Under the 1988 Act A. What's Fair? B. Fairness v- Fair Dealing C. Criticisrn or Review D. Reporting Current Events E. Some Cornments on the Case Law F. A Perfect Illustration: The Pro Sieben Decision i) The decision at first instance ii) The decision of the Court of Appeal iii) Conclusions on the Pro Sieben case G. An Analysis of Fair Dealing before the Courts
IV. Conclusions: Fair Dealing in the U.K. A. Fair Dealing and the Nature of Copyright B. The Problem with Fair Dealing in the U.K.
CHAPTER 3: FAIR DEALING IN CANADIAN COPYRIGHT LAW
1. Introduction: The Problem with Canadian Law
II. Canadian Legislation on Fair Dealing A. The Statutory History of Fair Dealing in Canada B. The Current Fair Dealing Provisions in Canada
III. Canadian Case Law on Fair Dealing A. All's Not Fair B. 'Unfairness' in Fair Dealing C. 'Research or Private Study' D. 'Criticism and Review' i) The Michelin Case ii) The Avanti Case iii) The Hager Case iv) Conclusions on the 'Criticism and Review' Cases E. 'hïews Reporting'
IV. Conclusions: Fair Dealing before the Canadian Courts A. Fair Dealing and the Nature of Copyright in Canada B. The Problern with Fair Dealing in Canada
CHAPTER 4: A COMPARATIVE APPROACH: THE U.S. EXAMPLE
1. The Nature of US. Copyright Law and Fair Use A. The US. Constitutional Setting B. The Relationship Behveen Copyright and Constitutional Freedoms C. The Effect of the Constitutional Statement upon Fair Use
II. Fair Use Legislation in US. Copyright Law A. The US. Fair Use Clause B. An Analysis of the U.S. Fair Use Provision i) Flexibility ii) The 'Balancing' Concept iii) Market Substitutability and the Public Good C. The US. Model: Does it Fit?
III, Some Problems with the U.S- Model: Fair Use in the Courts A. Property Rhetoric and Judicial Reality B, The Focus upon Authors' Economic Interests i) Presumptions: Commercial Nature and the Effect on the Market (a) The Sony Case (b) The Harper & Row case (c) The 'Double Wharnmy': Sony and Harper & Row ii) The Consequences of Over-Emphasising Economic Interests
IV. The Advantages of the US. Model A, Room for Reasoned Analysis B. An Illustration: Canzpbell Y Acziff-Rose Music, Inc.
V, Conclusions on the USModel A. The Benefits of Section 107 B. CS. Fair Use within Copyright Philosophy C. A Solution?
CHAPTER 5: THE LMISTAKENPHILOSOPHIES OF COPYRIGHT PROTECTION
I. Introduction: The ProbIem of Copyright Rhetoric 163
11. The Vision of Romantic Authorship A. '.4uthorship', 'Origination'. and 'Objectification' i) The 'Author' ii) 'Originality' iii) Propertisation and the Concept of the 'Work' B. The Implications for Copyright i) Romantic Authorship and Copyright Policy ii) Rornantic Authorship and Fair Dealing (a) Favouring the 'Author' (b) Stigmatising the User C. Conclusioi-is on Romantic Authorship
III. Private Property Theory 186 A. Locke's Theory of Acquisition of Property 187 i) The Fruits of Labour 187 ii) The Lockean Provisos 189 B. ProbIems with a Lockean AnaIysis of Intellectual Property 190 i) Interna1 Critiques of a Lockean Intellectual Property Theory 191 (a) Copyright and the 'Enough and as Good' Proviso 192 (b) Copyright and the 'No-Spoilage' Proviso 197 (c) Identieing the Labourer and the Product of his Labour 20 1 (d) The Question of Liberty 204 ii) External Critiques of Lockean Intellectual Property Theory 206 (a) Rethinking Locke on Property: A Departure From Deontology 207 (b) The Dansers of a Lockean AnaIysis 210 (c) The Effects of Property Theory upon Copyright and Fair Use 2 13
IV. Conclusion 218 CHAPTER 1: AN HISTORICAL OVERVIEW
1. The Historv of Copvri~ht
It is not uncornmon for pragmatic constructs to evolve, in the minds of those who use
them over time, into a necessary and universal fact. So it is with intellectual property.
Intellectual property and, in particular, copyright, are widely upheld as some form of
"naniral ~nheritance"',some "indefeasible right7". As Mark Rose warns us, it is a mistake to believe in the existence and necessity of copyright as an "ancient and etemal idea"'.
To regard copyright in this way is less reflective of historical fact than it is indicative of
Our intellectual tendency toward ex post facto rationalisation. As such, early explanations for the development of a legal phenornenon may undermine the subsequent justifications offered by its proponents. In recognition of this fact, an analysis of copyright from an historical perspective ought to be capable of contributing to our understanding of the philosophical basis of copyright.
My purpose in Chapter 1, then, is to suggest that the common characterisation of copyright as a body of law concerned with the protection of authors' interests and the reward of their creative efforts is historically unfounded. Rather, 1 will argue, copyright was always a political and pragmatic construct designed in the context of a social agenda.
' William Wordsworth, Lerters of William and Dorothy Wordsworth,(2nd ed-), E. de Selincourt (ed,). Oxford: Clarendon, 1974,3535- Quoted in Mark Rose, Authors and Owners: The Invention of Copyright. 1993, at 1 10. ' Robert Southey, 1819 Quarterly Review 21 1-12. Quoted, id., at 110. Id., at 3, quoting Frank D Prager, The EarIy Growth and Influence of InteZZectual Property, Journal of the Patent Office Society 34 (1952), at 106. I will then attempt, in section II, to locate the fair use ddctrine within this historical understanding of copyright and the system's underlying rationale.
A. The Statutorv Inception of Copvt-ieht f-) The Hisror-ical Corzrext
Et has been suggested that the development of some regulated form of control over published materials was no less than inevitable following Caxton's introduction of the modem printing press into fifteenth century ~n~land~.As of 1476, it became possible to reproduce multiple copies of literary work; meeting an increased demand for copies thus became a viable and lucrative business. The development of modem printing technology, then, provided the practical setting against which the regdation of published matenai came to be viewed as a matter of some exigency. This, in itself, however, is not enough to explain the birth of copyright. Indeed, it was not until the eighteenth century that copyright in its modem form first appeared. Contributing to the progression toward this end was the development of the concept of the modem author in the philosophical and legal imaginary: with the individualised vision of authorship emerging out of the early
Romantic period, a discourse of rights and natural entitlements grew up around the figure of the authors. Add to this the growth of a modern market economy in which propertisation and transferability are key, and we have the seeds out of which the modem notion of copyright was boni6.
'' L. Ray Patterson, Copyright in Historicul Perspective. 1968, at 4. 5 For an interesting discussion on this topic and its connection to the growth of copyright, see Edward Earle, The Eflecr ofRontanticism on the 19[/r Century Development of Copyright Law,6 I.P.J. 269 (199 1 ). mecoincidence of the development of the modem capitalist economy and the individualisation of the author is perhaps not without causal connection. As Michel Foucault observes, the individualised notion of authorship is "quite characteristic of our era of industrial and bourgeois society, of individualism and In the first half of the sixteenth century, it is likely that some degree of regulation had already begun to penetrate the book-making world. However, the first evidence of a definitive form for this regulation can be traced to the gant of a royal charter of incorporation in 1557. Under the Charter, only members of the Company of Stationers were permitted to enter a book on the Register, and only registered books could be lawfully printed. Sigificantly, under this restrictive practice, printing control was vested, not in the author, but in the stationer7. Copyright at this stage of its development, then, was not, in practical or theoretisal terms, a right of the author, but simply a nght of the publisher.
It is widely acknowledged that this regulatory system was one built upon coinciding self- interests as opposed to any deeper notion of natural rights or justice. The political stability of the Crown was threatened, during this period in history, by continuous religious struggle, making it largely dependent upon control over printing and publishings. At a time when protestant and catholic tensions were rïfe, the Crown and the
English govemnient relied upon, and sought to maintain, a policy of political censcrship and power over the printing press that would afford control over the printing and
private property." ( Wliar is an Aurhor?, in The Foucauit Reader, Paul Rabinov (ed.), at 1 19). ArguabIy, then. the asiomatic emphasis on rights and property within a socio-political discourse of individualism entailed the privatisation of daims to knowledge as private property. But see also CarIa Hesse, Enlighrenrnenr Episreniology and the Laws of A urhorship in Revolu fionary France. 1 777-1793, in 30 Representations L990, at 109 et seq. See also Chapter 5, infra. ' R.F. Whale, Copyrigizr: Evolzrtion, Theoty and Practice, 1970, at 3. Patterson, Hr'srorical Perspective, supra. note 4, at 6. disseminarion of printed matter: guarding the interests of church and state9. It is not
surprising then. that Queen Mary was so readily willing to accommodate the requests of
the ~tationers'~).
As such. prior ro the eishteenth century, the development of a notion of copyright was the result of a desire to control printing on the part of the Crown, and a desire to control the book trade on the part of the printers. In effect, the government policy of arrogating wide powers to the Company was designed to secure the stationers as "policemen of the press"". Concern with the author's right, economic eficiency and cultural growth had no role to play in these initial stages of development.
ii) The Fir-sr Sratrrrory Copyright Systenz
Because the govemment7s concem in the Stationer's Charter was with the censorship exercised through the Company. wlien the need for censorship dirninished, Parliament's interest dmindled until, in 1694. it chose not to renew the charter". A statutory vacuum existed for fifteen years, during which tirne the stationers petitioned for a renewal of the licensing system. Piracy increasingly threatened their control over the book trade, not
Ieast as a result of the Union with Scotland and the ensuing activities of Scottish
'1 For an interestinç discussion of the relationship between copyright and censorship prior to the enactment of the Starrire o/'=l~ine1709, see Patterson, supra. note 4, Chapter 6 (at 1 1442). IO For a su~r~mutyofQueen Mary's actions in relarion to religious censorsh@,see Whale, Evolution. Theory arrd PI-ucrice.sirpra. note 7,at 26-27. By way of example, in 1555, Mary issued a proclamation prohibiting books "conteynynge faIse docnyne, connarye, and agaynste the Catholic fayth, and the doctryne of the catholyque Church" (quoted in WhaIe, at 27). The granting of a the Stationers' Company in May of 1557 is described by Whale as "possibly the most important single act in the history of Anglo- American copyriglit" (id).By a proclamation made in June 1558, the possession of unlawful books was made a capital offence. II Patterson, Hisroricaf Perspective, supra. note 4, at 6. " Id. at 6 publishers who sought to take advantage of an opening within the entrenched business practices of the English bookmakers. Finally, after several Bills failed to pass through the
Houses of Parliament, the Statute of ~nne'lwas passed in 1709. This statute is the foundation upon which the modem concept of copyright is built. The "sole Liberty of
Printing" was granted to the author for a term of fourteen years and a fiirther term of fourteen yrars if the author rernained living. Twenty-one years of protection were granted to books published before the Act came into force in the Spring of 171014.
Thus, one of the most apparent innovations effected by the enactment of the 1709 Act was the recognition of the author. and not the publisher, as the initial bearer of the nght.
Arguably. the gant of rights to authors firmly locates this statute as the foundation for modem copyrisJit Law: modem copyright legislation, of course, confers copyright to authors. Moreover, modem commentators, Iegislatures and judges tend to concentrate their analysis upon the interests of the author in his claim to right over his work.
However, given the proliferation of author's rights that has followed, and the tendency towards author-oriented analysis, it is important to take cognisance of the nature of, and purpose behind, this initial allocation of authors' rights.
iio An Annlj.sis of dze Statute of Anne
While it is easy to point to the 'triumph' of this apparent shift in focus fiom publishers to authors, the construction that has been accorded to the Statute of Anne is arguably flawed
" 8 Anne c.19 14 It is Iargely as a result of this provision that litigation did not arise on the subject of a possible comrnon law copyright until the Stantte ofAnne had been in force for over two decades. in its nezlect of the history that preceded its enactment15. Incorporating into the analysis
an account of events leading up to the 1709 Act, it becomes naive to view the legislation
as embracing authors' rÏghts. One would be forgiven for imagining, from the face of the
statute, that, by favouring authors, the Act was contrary to the Stationers' aim of re-
establishine their monopoly in the book trade. However, it has been suggested that the
political svents surrounding its enactment justiQ the conclusion that the content of the
Act was. in facr. &-devisedwith that aim in mind"16: if the author acquires a legally
recognised right in his or her work, then this nght cm be assigned to the publisher. The
granting of rights in works to authors under the Sratute of Anne was therefore a means by
which to achieve the desired end; namely, the reinstatement of a publisher's right over
the material they published-
If such an interpretation appears far-fetched then it might at Ieast be conceded that,
following the enactment of the 1709 Act, the booksellers' continual representation of
copyright as an author's right was a strategy deployed out of self-interesti7. With the
expiration of tlie twenty-one year grace period, the stationers sought to perpetuate their
15 Panerson writes. in Hisrorical Perspecrive, supra. note 4, at 12, that: "it is impossible to study the Statute of Anne in tlir Iight of its historical perspective without feeling that it was never properIy interpreted, and that had it ben construed correctly, modem ... copyright law would rest on much sounder principles that it does." Although. retrospectively, the 1709 Act rnight appear as the clear foundation of modem copyright principles, tlien. it is arçuable that the construction built upon this foundation could have - and perhaps should have - looked very different from the present construction, and could thus have been more tme to the original sliripe of its foundation. 16 David Fewer. Cotzs~irtrtionalizingCopyriglzt: Freedom of Expression and the Lirnits of Copyright Law in Canada, 55 U. of Toronto Fac. of Law Rev. 175 (1997). Fewer writes, at 186: "The transfer of the publication rislits from the pubtisher to the author was part of the Stationers' stratesy to devise a form of copyright that would restore to rheir Company the perpehral monopoIy on publication that it had Iost with the dernise of tlie licensing Act of 1662, The Stationers sought to establish a judicially recognisable natural right to the fruits of their intellectual Iabour, which could, of course, be assigned to the Stationers' Company as an incident of publication." 17 Patterson, Hisrorical Perspective, supra. note 4, at 15. monopoly by arguing that the author had a perpetual cornmon-law copyright in his work as. in accordance n-ith natural law pnnciples, he had created it through his labourls. The stationers' perpetual copyright would then be re-established, onIy by another name: a name more congruent with the accepted principles of natural justice and the dominant political theory of Liberal individualism, and thus more likely to be endorsed by the legislature. the judiciary, and the public. The intended effect was to establish natural rights theon: as the legitimising force behind the reaiity of monopoly.
As such. it is a mistake to overernphasise the extent to which copyright was recast, in the
Statzlte of'A~zrre.as an author's right. Patterson observes that:
-'The statutory copyright was to share the same fate to that of the stationers' copyright: it was to be shaped by events and forces directed by persons concemed with copyright only as a means to an end for themselves and not for the riuthor. The irony is not that should have been so, but that in the process copyright should have corne to be known as an author's right."Ig
Given the strategic motivations behind the introduction of author-oriented copyright reasoning. ive should be wary of hailing the 1709 Staîute as unambiguous validation of the author's claim over a right to his work. Undoubtedly the shift of regulation from the protection of the publisher to protection of the author was a pivotal moment in the developmcnt of modem copyright. It should, however, be considered in the context of the political struggle leading to the eiiactrnent of the 1709 Act, and the strategic opportunism of those involved in the copyright debate.
1s See in@. chapter 5, section II for a discussion of the Lockean theory of labour-acquisition as applied to the products of 'intellecrual labour'. "'Id. at 14. With respect to rhe innovative force of this legislation, then; 1 would suggest that what was tmly revolutionary about the concept of copyright established by the Statztte of Anne was not the introduction of an authorial interest, but rather the introduction of a public interest dimension into the copyright regime20. Until now, the only interests recognised to have bern at stake were the interests of booksellers and the Crowrr. In my opinion, the enactment of the Smtrrte of Ame should be understood as having radically shifted the focus of d-ie copyright debate, recognising the integral role of the public in the question of literary property. The title of the Act announced its purpose to be:
"the E~zcotrr-czgementof Learning, by Vesting the Copies of Printed Books in the Author's or Purchasers of such Copies, during the Times therein Mentioned".
The Act can therefore be attributed with an expressly normative character, By linking the copyright sclierne to the Iarger purpose of encouraging and contributing to learning, the
Act was intended to recognise and to fùrther the interests of an increasingly literate and educated public in the proliferation of literary work. In other words, by instigating a copyright systern tliat could function as a form of trade regulation device", Parliament sought to act in the interests of society by preventing monopoly and, at the same time, ensuring that the publisher benefited from making the works available to the public through p~iblication.From the preamble, then, it can be established tfiat the purpose of the n'ghts conferred under the Act must be understood in relation to the general project of
'encouraging leaming'. This understanding of the provisions of the 1709 Act undermines any assertion that the purpose of the Statute was the protection of an author's naturai
'O Peter Dralios. A Pliifosophyof l,zrellecrna/ Property, 1996, at 23. " Patterson. Hisror-ial Perspective, supra. note 4, at 14. According to Patterson: "[Jlust as prior acts involving copyright were basically censorship acts, the Statute of Anne was basically a trade-regulation starute. It was designed to insure order in the book trade while at the same time preventing monopoly." rights over the product of his intellectual labour. Rather, by affording suEcient import to
the words of the preamble and the general flavour of the Act as a whole, the granting and
protection of autiiors' rights were not the purpose but the means by which the copyright
system souglit to encourage learning.
Furthemore. it must be stressed that the Act imposed, for the first time, a limited
duration for copyright. By providing for a time limitation upon the duration of the
copyright. the Iegislature was irnplicitly recognising the existence of a public domain of
Iiterary works. Recognition of the importance of the public domain, particularly through
restricting the life of an author's copyright, would be inconsistent with the
charactensation of the copyright scheme as securing author's pre-existing rights to their
work. If an autlior were regarded as holding pre-existing nghts and not merely the
artificial product of positive law, then the justifiability of the law's refisal to recognise
such rights after an arbitrary period would be thrown into serious doubt. In the debate
leading to the enactment of the 1709 Act, the booksellers, basing their position upon the
existence of a cornmon law right, argued with respect to a proposed limited term that:
"[Ilf wr have a Right for Ten Years, we have a Right for Ever. A Man's having possess'd a Property for Ten or Twenty Years, is in no ather Instance allow'd, a Reason for another to take it from hirn."22
It is clear tliat legislators perceived that a potential threat to the systern of limited rights would arise from any suggestion that the Act was merely confirming an extant nght and not creatiiig a new one. For this reason they sought to ensure that no statement was made,
'* In the second brondside presented to Parliament concerning the copyright Bill, entitIed More Reasons Humbiy 0J2r'd ro [lie Hotrorrrable House of Commons. Quoted in Mark Rose, Aufhors and Owners, supra. note 1, at 44. in the contents of the Act, that rnight be understood as acknowledging some pre-existing
right of authors to the products of their intellectual labo#. The final wording of the Act,
torgether n-ith its legislative history, is indicative of Parliament's resistance to the claims
of the booksellers who sou@ to equate literary property with traditional pnvate property
and rights of owiiership?
Paaerson lias argued that the inclusion of the author in the copyright regime represented
an artempt by Parliament ro -use' the author "as an instrument against the rnon~~olists"'~.
While the theoretical question of the nature of the right accorded to the author under the
statute was perhaps not hlly discussed or resolved, it seems fair to Say that the provisions
of the new Act were formed in response to pragrnatic considerations and practical
exigencies, and were quite deliberately designed to suppht any claims to a common law
or naturai riglit made on behalf of authors. If inclusion of the author was simply a tool against monopoly, then it is a mistake to understand the purpose of the Statute of Anne in relation to authors' needs or entitlements. Rather, 1 would suggest, the Act had a clear public purpose, which it expressly acknowiedged and was clearly intended to further: the
" It was seeniingly an awareness of the contradiction between a cornmon Law right and a statutorily limited term that led to tlie Bill's change in title during its passage through Parliament, The title originafly proposed read: "-4 Bill for the Encouragement of Leaming and for Securing the Property of Copies of Books to the Riçhtful Owners Thereof". This was rewritten to omit any statement that might be taken to imply that autliors had a common law right. The new title, "A Bill for the Encouragement of Leaming by Vesting the Co~Isdof Printed Books in the Authors, or Purchasers, of such Copies, during the Times therein Mentioned", clearly obviated any suggestion of pre-existing right. Parliament had also purposefulIy avoided usiriz the term 'secunng' in place of 'vesting' in order to reinforce the fact that a new right was being creared. For a full discussion of these and other alterations made during the drafting process, see Rose, id., at 43-47- '' Id. at 47. '' Patterson, Historical Perspective, supra. note 4, at 15. Thus, according to Patterson, because the booksellers liad always made arguments supporting their monopoly on the basis on the author's interests, the draftsmen of the new Act used these arguments as the Iogical basis fiom which to attack the booksellers claims. As sucli, Patterson argues, "[e]niphasis on the author in the Statute of Anne implying that the statutory copyriçlit \vas an author's copyright was more a matter of form than substance." (Id. at 47). granting of a right ro the author \vas the means by which the legislature sought to dissolve the monopoly over the book industry, thereby Mering the interests of society in the proliferation of. and inexpensive access to, literary rnaterials.
Indeed, the importance of public access to copyrighted books was expressly acknowledyed in the new copyright scheme: the Act provided that, where any person believed a book IO be being sold "at such a price or rate as shall be conceived ...to be too high and unreasonable", tliat person could make a cornplaint to a public official who could have tlis power to limit the price. The inclusion of this provision is further evidence of the drafters' goals and of the position occupied by the public in this first statutory copyright scheme. As Peter Drahos notes:
"The whole flavour of the Act was instrumental and practical. Copyright's role was to encourage writers to produce, thereby serving the larger purpose of encouraging and adding to learning'?
B. The Role of Case Law in the Develo~mentof Copyright
ï) The Questioll of Litera~.Propert)'
The debate surrounding the underlying nght of property in literary works becarne known as "the question of literary property"'7, and has since been termed "the Battle of the
~ooksellers"'~.Significantly, the battle was one of commercial interests: authors tended to sel1 their rights in entirety and so were not directly affected by the manner in which such rights were categorised. The debate, however, attracted significant public interest
"' Drahos, A P/~ilr,stqdyof lmdecrtral Properry, supra. note 20, at 23. 27 Rose, Anrlior-A-ttnci Owlet-s,sirpt-a. note 1, at 4. and was one of the most contested issues in late seventeenth and eighteenth century
The question of the author's common-law right was first raised in the Sconish COU^ of
Session in 1743 in the case of Millar v ink ka id^^, where the action, brought by seventeen
bookseIIers of London against hventy-fo~rbooksellers of Edinburgh and Glasgow, was
eventually disinisssd on appeal to the House of Lords on technical grounds. This case represented a setback for the London booksellers, and was evidence that the judicial bias
that had esistsd in their favour was beginning to mm3'. In the early 1760's. English booksellers agaiii took up the campaign to remove the Scomsh reprints fiom England.
The resulrine landmark case of Millar v T~~IoS~concerned Thomson's The ~ensons~~, which, without the registered proprietor's (Millar's) permission, had been copied for sale by Taylor. In this judgement, the booksellers' strategy proved to be effective, and three justices to one lield that the author has a cornmon-law and natural right in his work that outlasted the statutory limitation. Although this decision was a short-lived precedent, being overruled in the case of Donaldson v ~ecketr'~five years later, the judgement had a far-reaching effect upon Our understanding of modem copyright; an effect whose importance should not be underestirnated.
2s Patterson. Hisroriccrl Perspecrive Historical Perspective, supra. note 4, at 15. See also Rose, id., Chapter 5, at 67-9 1. '9 '9 Drahos, cl Pl~ilosopl~yof ltrrrllecrual Propcrrj-. supra. note 20, at 23. " Craigie. Reports 1 :38; cited 4 Burr. 23 I9,98 ER 21 0 (1 750). " Patterson. Hisrorical Perspective, supra. no te 4, at 163. 32 4 Burr. 2303.9s ER 20 1 (1769). 33 The aptness of this choice of target has been remarked upon: as Rose observes (Authors and Owners, supra. note 1, at 1 14), T1.iomson's poem is the perfect Lockean work, wherein nature provides the original materials witli wliich the poet's personai reflections are mixed to create a work of Iiterature, irnprinted with the personality of the poet, '.'4 Burr. 240s. 98 ER 257,2 Bro. PC 129, 1 ER 837 (1774). It is notable rhat- althouzh each of the judgements focused upon the rights of the author,
no author \vas a party to the case. The way in which the issue had been framed, however,
was such that the judges were almost required to approach the issue as though an author
were part? ro the action'j. Apparently, this had been the objective of the plaintiffs, as
concentrating upon the author's rights enabled the booksellers to side step the question of their monopoly. -4s such, notwithstanding that the case was shoaly to be overtumed, the manner in ivhicli the question was addressed and the resultant strains of argument ensured tliat the MIhr judgement "firmly fixed the idea of copyright as an author's right."36 Furthemiore, it recognised a cornmon-law copyright as the result of a natural righr belongin: to the autlior.
ii) The Millar \- Taylor Decisiorz
Those judgcs who found in favour of common law copyright proffered three lines of justificatory ars~irnent:the justice justification, the incentive justification and the natural rights justificarioi~~~.What is initially stnking about these Iines of argumentation is that they represent the same "first order ethical the~ries"~~upon which the debate surrounding the justification of intellectual property continues to play itself out.
'' Patterson- Hisroricai Perspecrive. supra. note 4, at 169. Patterson quotes Mr- Justice Willes in Millar v Taylor, 9s ER 20 1. at 206: "If the copy of the book belonged to the author, there is no doubt that he rnight transfer it to chri phiiitiff. And if the plaintiff, by the transfer, is become the proprietor of the copy, there is as little doubt that the defendant has done him an injury, and violated his nght: for which, this action is the proper remedy .-.'. 36 Patterson, Hisrorial Perspecrive. supra. note 4, at 15. 37 Drahos, A Plrilr~sojdq~of i,r teliecird P roperty, srrpra. note 20, at 25. '13 Id- at33. The incemi\-e arpment put fonvard by Justice Willes is a direct reIative of the utilitarian arguments n-idely advanced today, sharing the same practicaI bases as the so-called
'zncouragenient theory7. Having taked of natural justice and conceded that others cannot justly reap the benefits of what they did not sow, Willes went on to argue that:
"It is n-isr in any state. to encourage letters, and the painful researches of learned men- The easiest and most equal way of doing it, is, by securing to thern the proprrty of their own ~orks."~'
In contrasr. Justice Aston's natiiral rights justification overlaps significantly with the argument for private property rights advanced by modem libertarian theori~ts~~.The philosophical assurnptions of the natural !aw tradition, which dominated jurisprudential discourse at tliis tirne, pervade the judicial debate. As such, the reasons offered for supporting the cornmon-law copyright are primarily founded upon the natural right of a man in the property he creates? For example, Lord Aston concludes "[tlhat a man may have property in his body, Me, fame, labours, and the like; and in short, in anything that can be called ~iis.'~~'"Lord Mansfield argues that "it is just, that an author should reap the pecuniary profits of his own ingenuity and labour.'*3
3') 98 ER 20 1. ac 257. " Id. at 26-7. 4 1 We will fociis in ~reaterdepth upon the acquisition of private property in chapter 5, itflra. " 98 ER 20 1. at 220. 43 Id. at 252. It is intsresting to note, however, that Lord Yates also bases his arguments firmIy within the natural law trûdition. yet arrives at the opposite conclusion. His rejection of the common-iaw copyright for abstract objects semis to be based upon an assumption that ideas are open to aIl, for use by all. Thus the act of publicacio~irnrikes an idea a gift to the public. Yates agrees that every man is entitled to the fniits of his own labour. and so supports a reward such as that conferred by the Stature ofAtme. However, this is baianced against ~henatural right of others to access and use abstract objects- In recognition of this fact, an important and relevant conclusion can be drawn from the interplay of theses advanced in this case. Peter Drahos observes that the divergent Iines of justificatory argument are not, in thernselves, determinative of the result. Ratlier, \\kt deterrnines the way in which the theoretka1 expianation of intelIectua1 property deveiops through these lines of argument is the "characterisations and assurnptions made about community"; Drahos, A Pltilosoplly of itrtellectual Propers>, supra. note 20, at 28. What differs in the approaches of Lords Aston and Yates is a conception of comrnunity: Aston's vision is founded upon a negative conception of community, while Yates reIies upon a positive conception whereby the commons It is clear that the debate undertaken by the Justices in the case of MiZlar v Taylor retains substantial modem significance. Much of the current discussion surrounding questions of iritellectual property continues to focus upon the appropriateness of either utilitarian or proprietarian rationales for intellectual property rights. It remains the case that these two dominant justiticritory theones have a complex interrelationship, sometimes converging and sometimes conflicting, ofien explicitIy but, also, always sornewhere beneath the conscious Ievel. In the course of the following chapters, I hope to provide evidence of some of the confbsion in the underlying prernises of copyright Law, and the consequences of this confiision in particuIar instances. For now, what should be taken fiom this case, is that it sets the scelle for much of the modem debate conceming intellectual property: it is evidence of the contradictions and controversies permeating the discussion, and the impact that conflicting visions of natural rights and instrumental objectives can have on the substance of the debate. Moreover, it arguably lies at the root of much of this confision.
However, as philosopnical as the debate over literary property appeared at the time of
Millar v Tizylor, the actual outcome of the decision seems always to have been destined to be undercut by the practical exigencies facing the courts when these actions were brought. By framing the question in terms of the entirety of an authors' rights, the stationers had, temporarily, succeeded in side-tracking the court into a discussion of
- -- are the subject ofjoint ownership. In the latter, ofcourse, private property is not so easily established simply by mising the cornnlons with one's individual labour. For a more detaiIed discussion about the relevance of different visions of community upon natural law pilnciples of property acquisition and theories of intellectual property acquisition in particular, see id. at 25-28. complex philosophical questions regarding the creation of pnvate property. Meanwhile, the question of the stationers' monopolistic practices, which in fact constituted the core of the debate. was by and large lost in the resulting theoretical upheaval.
The English judzes. then. had clearly regarded the justness of fundamental pnnciple as pnor to the pracrical considerations at hand. Their Scottish counterparts, however, were more conceined with economic consequences4 and, within two years of the Millar decision, the Court of Session contirmed in the case of Hinton v ~onaldson" that, in
Scotland, tliere was no right of literary property independent of statute. Lord Coalston explicitly recognised that. although the question was fiamed in terms of an author's right, it was "of no great in~portanceto authors," He noted that, rather, the consequence of finding in the p~rrsuer's favour would simply be "to establish a perpetual monopoly in favour of the bookselIers of ond don"^^.
iii) The Doiialdson v Becket Decisioiz
The English and Scottish authorities were soon realigned in the case of Donaldson v
Becket. Altho~ighthe majority of judges voted in favour of the perpetual copyright, the
Lords votrd against such a rightJ7. It is unfortunate that the peers provided no rationale for their aiiswer, but simply "declare[d] by authority that henceforth copyright would be limited in term'"? As such, the case can contribute little to our understanding in regard to the particular vision of the nature of copyright adopted by the Court: most likeiy, the case
44 Rose, Ad~ol-sancf 0wze1-s,supra. note 1, at 84. " Boswell, Decision ( 1773). Id. at 27. 47 At this time is was still the practice of the House of Lords to decide a case by a general vote of the peers. was decided. as Hilztorl was in Scotland, on the bais of the practical result rather than any underi y iiig tl~eor~''~.
In Donaldso~z1. Becket, the House of Lords fiarned the issue in terms of the Statrtte of
Anne and the concept of copyright, and so avoided consideration of the author's interest except as directly related to the monopolistic practices of the book seller^^^. According to
Patterson. nhat the Doiznldsoiz case actually held was that the Statute of Anne supplanted the author7s common-law right to the soie printing, publishing and selling of his works.
The decision has, however, been interpreted as supporting the proposition that the perpetual rights of the author that existed at comrnon-law ceased upon publication of the work. Pattcrson observes that the Donaldson judgement itself lefi open the possibility of finding riglits. independent of copyright, vested in the author on the basis of his creation.
By acknowledging a divergence between the author's and the publisher's interests in the work, such an interpretation would have opened the way to limiting the nghts conferred by way of copyright. It is perhaps unfortunate, then, that the case was interpreted as refeming -.to the monopoly of the work as opposed to the rnonopoly of the book trade.""
The result of this interpretation was that copyright became both a natural nght of the author and, at the same tirne, a rnonopoly of publishers, albeit for a limited tirne''.
Rose, A ttrlior~md O\iwem. srrpra. note 1, at 103. 4') For a fui1 discussioii of the Donuidso~idecision, and the political and philosophic issues at stake therein, see Rose, Aitrl~o~sami 0w~er.s.srrpra, note 1. Chapter 6, at 92- 1 13. 50 Panerson. Hisroriml Perspective. srrpra. nore 4. at 173-4. Id. at 17. '' According to Pattrrson, id., "[tllie fiction of voluntary forfeiture [of the entirety of the author's rights to the publisher]. .. pro~~ideda facile escape from the dilemrna which emerged as copyright becarne an author's ri&: the idea that copyright \vas both a naturai right of the author and a monopoly. It also It is clear. then, that the decision represents a crucial stage in the development of modern copyright lax: its effect was to consolidate the both the relationship between the author and his work. and. by extension. the constructive relationship between the publisher and the author's work, Moreover. the decision had the effect of locating the former relationship as the centrepiece of copyright law and the regdation of the book-trade; a perceived location that is, I will argue. responsible for many of the tensions that exist in today's copyright regime.
The interpretation given to the Donaidson decision was largely a result of the philosopliical debate that had takrn place in the earlier case of Millar v Taylor. When the
Battle of the Booksellers was finally concluded, then, copyright was the right of an author, an author's entire interest in his work. Patterson succinctly explains the implication of th is understanding:
"[Tllie idea that copyright is an author's right, in some vague measure based on his namral rights, continued to exist and had a subtle effect on the concept, for it enlarged the scope of copyright."53
C. Conclusions on the Historv and Developrnent of Co~vri~ht
This brief I~istoricaiaccount of the early development of copyright law was undertaken with the intention of conveying an important aspect of the copyright regime: namely, the nature of copyright as a functional construct performing a social role in connection with the creation and distribution of literary works. Perhaps more important, however, is my
obscured the basic points that the monopoly with which the lawmakers were concerned was nota monopoly of autliors but of publisliers." s3 M. at 17. intention to convey what copyright is ~ot:it is not a systern established under the auspices of iiatural justice to secure the extant rights of authors to their work.
The crucial point. then, which ought to be derived fiom the historical overview above, is that the foundations of copyrizht law lie. neither in the recognition of some mora1 expediency in the name of justice, dessert and the natural Iaw, nor hmsorne "naturai need of the human mind"". Rather. copyright grew fkom what was essentially an economic stnrggie, which took place in the light of the cornmodification of literature and in recognition of the value of econornic pnviiege that copyright could bestow. The philosophical and theoretical search for the author's natural rights and justice, which took place in Eighteenth Cenmry Britain, occurred Iargely in spite of, rather than because of, the nature of copyright as it then was. Ultimately the debate only succeeded in perpetuating the tensions between the author's rights and the publisher's monopoly by obscuring the point at which these interests diverged. The result, it is suggested, was the development of an underlying philosophical justificatory theory that failed to acknowledge the practical setting, and relevant interests, against which the diaIogue took place. This justificatory theory operated - and continues to operate, at least implicitly - to strengthen the claim to wide copyright protection.
Meanwhile, the tmly innovative feature of the first copyright statute - the primary significance expressly accorded to the instrumental aims of the act - was seriously neglected. The discourse that emerged out of political and commercial stxuggle obfuscared these instrumental aims. and so obscured the role of the public whose interests it was that the Act sought to protect through the regulation of literary works.
Practical it ies, po 1itics and strategic argumentation thus distorted the nature of copyright, recasting it in terrns of rights-based analysis, The situating of copyright within the rhetork of enritlement entailed the development of author-oriented reasoning; a focus that continues to distort our understanding, and disable the appropriate application, of copyright principles today.
My hope is that this discussion cminform Our exarnination of copyright law that follows by allowing lis to avoid the mischaracterization of copyright as an author-oriented sysrem. As wc go on to discuss the fair use doctrine, the particular understanding of copyright \vit11 wliich we approach the question of fair use will undoubtedly mould Our analysis of rliis exception to the copyright rules of infnngement. Notably, if, as Patterson argues, the historkal background of copyright Iaw suggests that modern copyright is unjustifiably far-reaching in scope, then a correlative effect might be assumed to be the unjustifiably nan-ow interpretation of any exceptions thereto.
II. The Historv of Fair Use
A. Locatin~Fair Use Within Copvricht Policv
As the copyright regime developed throughout the eighteenth and nineteenth century, so too did exceptions to the Srarure ofAnne. The formulation and development of the most important exception to the copyright legislation - the 'fair use' or 'fair dealing' exception
54 Harold C. Streibich, The Moral Rlght ofOwiership to Intellectuctl Property, 6 Memphis St. U. L. Rev. 1 - occurred over the hundred years between 1740 and 1840, by which time it had gradually found definition in "a re!atively cohesive set of principles".ss In a bnef overview of tlie liistoncal development of fair dealing, 1 hope to show that the doctrine grew out of recognition by the courts of the need to fûrther the normative goals of the copyright regimr as laid out in the Stattrte of~nne'~.Thus, when fair use first appeared in its initial fort11 of 'fair abridgement', it was as a result of a conviction that, by permitting a good faitli. productive abridgement of a copyrighted work, the courts would be furthering Parliament's objective of promoting the usefid arts and so benefiting the public.
There is a subtle difference between this historical understanding and that to which
William Patry seems to adhere. Patry argues, in his landmark work on the fair use doctrine, thar. in its earIy fair abridgement context: "[tlhe use was not justified because there allegedly existed a conflict between [the first author's copyright and] the public's need for increased access to the first author's work." In fact, argues Patry, "[tlhe pubIic entered into the picture only as an indirect beneficiary of the second author's creation of a useful work."" Put another way, this vision of fair use understands the exception to be the result of a recognition that the second author was equally deserving of copyright in his work, because the secondary work did in fact contribute something usefiil to the public. It follows from Patry's interpretation that, in developing a concept of fair use,
(1975)' at 2. 55 William F. Patry, TJze Fair Use Privilege ist Copyrighi Law, 1985, at 3. 56 8 Anne c.19 (1710), sl. '' Patry, The Fair Use Priviiiege. srrpra. note 55, at 3-4. The term 'first author* refers to the person recognised by tlie copyright regime as having created the original work. By 'second author' is meant the person whose subsequent work invoIves a substantial taking from that of the 'first author'. English jurisprudence can be regarded as having been simply responding to a statutory scherne that aimed at encouraging "leamed men to compose and write useful books"S8.
It seems to me, however, that the public interest in copyright matters extending from the
Srarute of Arrire cannot be relegated in this way; in my opinion, it is a mistake to place the interests of the public in the position of a 'secondary consideration', whiIe elevating to the position of 'primary consideration' the rights of authors who created useful secondary works. Indeed. the desire to characterise the bases of fair use in this way is clearly the result of the tendency towards author-based reasoning criticised above.
The copyright scheme, as it should be understood from a proper interpretation of the
1709 Act, involved the statutory allocation of nghts to an author with the express purpose of furthering the public interest in the proliferation and dissemination of literary works.
As such, the role of the public in any consideration of authors' rïghts under the statutory scherne, miist be the role of intended or direct beneficiary. The role of the author is therefore merely Ntsri-rinleirral in the production of such benefit: the author's rights were created in order to serve this purposc59.
On this understanding, then, it was becarlse the public received the intended benefits of the Act from the second author7screation that the second author was allowed to enjoy the advantages conferred under the Act. There is a crucial distinction to be drawn between
58 8 ~nnec.19 (1710) 59 or an interesting discussion of the Lauthor-as-insmment' in copyright policy, see Seltzer, Exemptions and Fair Use ÏII Copyr-i..hr: Tlle Escltisive Righcs Tension in rhe 1976 Copyright Act, 1978,chapter 1 at 3- this explanation and that offered by Patry: Patry seems to suggest that it was because the second author's creation was such that he was entitled to receive the advantages conferred under the Act, that the public was allowed to receive the benefits derived fiom the second author's creation. This latter understanding of the rationale behind fair use clearly fails to appreciate the instrumentality of the author's role in the copyright system.
To my mind, it is, ultimately, the public benefit to be denved fiom both the first and the second authors' works rhat is relevant In my opinion, then, it was in recognition of this benefit that the 'fair abridgement' exception entered into English copyright jurisprudence.
B. The Development of Fair Use in the Courts i) Fair Abi-idpuent
In the case of Gv[es v ~l/ilcos~~,Lord Chancellor Hardwicke discussed the possible defence in a copyright action of so-called 'abridgement? Hardwicke opined that a work that would normally constitute an infringement of copyright could avoid liability on the basis that it was a "real and fair abridgement" of pnor work. The reasoning behind this conclusion was that "the invention, learning, and judgement of the author is shewn" in such abridgeinents and so, it can be inferred, they are, at least fictionally, a 'new work'
~~~~~ 1 7.See also, Barry Torno, Fair DralNtg: The Need for Conceptual Clarity on the Road to Copyright Revision, Canadian Department of Consumer and Corporate Affairs, 198 I, Chapter IV, at 56 et seq. "'2 ~tk.131 (I71O). at 143. '' The meaning of 'abridgement* rests upon the idea of the secondary user "capturing the essence of the original in a reduced form" (Patry, The Fair Use Privilege. supra. note 55, at 17). that can therefore be regarded as promoting science and learning in the sarne rnanner as
did the original work6'.
In the 1731 case of Torison v Wdket-63,Lord Chancellor Hardwicke was again faced with
deciding whether a work constituted a fair abridgernent. The issue was identified as being
"whether the aIterations make it a new work, or are intended evasively to colour a new
editi~n."~On the basis that the origina! author had compiled 1500 notes for an edition of
Milton's poems and the alleged infringernent contained only 28 additional notes,
Hardwicke concluded that, while "[a] fair abridgement would be entitled to
protection .... tliis [was] a mere eva~ion."~'The focus, then, was once again believed to be
upon the estent to which the second work was a 'productive use' of the first.
The cases of Dorlsky v ~~tilersley~~and Macklin v ~ichardson~~went some way towards
estabiishing the relevance and impact of use for the purpose of review, as well as the
relevance of the effect on the market for the original work. In Dodsley the court found
that an extract of Samuel Johnson's work published in a magazine did not constitute an
infiingement under the copyright statute; previous publications of extracts had not
6' 6' Patry, Tlze Fuir C'se PI-iviiege.supra. note 55, at 7. Hardwicke stated that: "Where books are colourably shortened only. tliey are undoubredly within the meaning of the Act ..., and are a mere evasion of the statute, and cannot be called an abridgement. But this must not be carried so far as to restrain pesons fiom making a real and fair abridgement, for abridgenients may with great propriety be called a new book, ... and in many cases are extremely useful.. .. If 1 sliorild extend the rule so far as to restrain al1 abn'dgements, it would be of niischievous consrquencr, for the books of the learned, les Journal. des Scavans, and several others tliat might be mentioned, would be brought within the meaning of this act of parliament." 2 Atk. 141 (I 740). rit 143. Quoted in Patry, Tite Fair Use Privilege. su?ra. note 55, at 6. 3 Swans. (App-) 672. id, at 667. bS id. at 680. 6~ Arnb. 403 (1 76 1) (No. 212). " Arnb. 694 ( 1770) (No.34 I ). affected the market for or value of the original, and so "could not tend to prejudice the plaintiffs"6s. In iMackliii. it was held that a magazine's publication of the fust act of a play was not an abridgement and would be of "great injury" to the plainti~69Patry notes that this case implicitly provided the basis for "the principle that a review may not supplant the market for the work itse~f"~.
In 1803. in the case of Cai, 1. ~eai-sleYi1.Lord Ellenborough's judgement was the first to recognise the concept of fair use as distinguished from fair abndgement7': as opposed to reducing an original author's work, the second author has made "use of another's labour for the promotion of science and the benefit of the EIlenborough thus laid down the iss~teto be:
"whether what is so taken ... from the plaintiff s book, was fairiy done with the view of compiling a usehl book for the benefit of the public, upon which there had been a totally new arrangement of such matter, -or taken colourably, rnerely with a virw to steal the copyright of the plaintiff."74
Ellenboroupli \vas quick to point out that if a work were taken animo furandi, a plaintiff would be deprived of the fair use defence. Patry observes that this condition - which
63 Amb. 403 ( 1 76 1 ) (No- 3 13) at 305-406. 69 ~mb694 ( 1770) (No. 34 1) at 696. 70 Patry, The Fair- Use Priviiege. supra. note 55, at 9. " 4 Esp. 165 (1 830)- " One critical difference benveen the concepts of fair abridgement and fair use should be noted. As Patry expIains (in Tltc Fuir- Use Pr-ivilege, supr-a. note 55, at 17): "CWfhile fair abridgernent resttd upon capturing the essence of the original in a reduced fom, this 'communication of the same knowledge' was flatty prohibited by fair use." This progression from fair abridgement towards fair use, then, can be understood as evidence that the main concern of the court was not with the effort expended by the secondary author. but rather witii the contribution to the public knowledge made by the work resulting from the second author's efforts. 73 4 Esp. 168 ( I S30) at 170. 74 Id. at 171. requires a finding of good faith and fair dealing through bath a moral inquiry and an evaluation of creative effort - is very much alive in modern fair use litigation75.
By early in the nineteenth centilry. then, the fair use or fair dealing defence was already beginninz to resernble its modern form. Indeed, the much-quoted explanation offered in the Caq: case continues to provide the basis for recognition of fair use:
"[Wlhile I shall think n~yselfbound to secure every man in the enjoyment of his copyright, one must not put manacles on ~cience"'~.
As such, althou& a fair use detènce could not be established simply on the basis that the work in question benefited the public, it was in recognition of the benefit to be derived from the productive use of original works, that the fair use defence was accepted.
Additional considerations did, of course, have to apply: allowing serious injury to the original work's market or value, or allowing bad faith infnngement of copyright protection, would undermine the copyright regime established under the Sratzire of Anne.
The defence. Iiowever, was founded upon a recognition of the worth of some - otherwise infiingin; - works to the progress of science and to the public in general, and so the extent to which such works fitted within the normative fiamework of the statutory copyright scheme.
Over the following thirty years, several cases appeared before the court concerning this defence to copyright infnngement actions, resulting in the gradua1 concretisation of the
" Patry, The Fuir Use Pridege. sslrpra. note 55, ar 1 1. In support of this observation, Patry cites inter alias the decision of tilt Second Circuit in /OWU Srute Utziversiy Research Foundation. inc. v BC, 621 F. 2d 57, 62 ( 1980): "Ire rigree with Judge Lumbard that ABC'S conduct in the instant case is not irrelevant to the fairness of its use." '' 4 Esp. 16s ( 1 SO3) at 17 1. doctrine and its requirementsii. The acnial term "fair use" in respect of extracting fint appeared in the case of Leivis iT~idlarton'~ in 1839. In this case, Lord Langdale rejected the fair use defence on the basis of his finding that the defendant had not made productive or- creative use of the work, having expended "no other labour... than in copying the Plaintiffs ~ork"'~.As such, in the terms used by Lord Ellenborough in
Roworth 1- Wi~kes~*,the allegedly infinging work simply involved cccomrnunication of the snme bioii*~edge"~~as was contained in the original. Wherever a defendant's secondary work succeeds simply in cornrnunicating the 'same knowledge' as was found in the content of the primary work, it is clear that the defendant's work cannot be regarded as contributing something new to the public's learning. Mere repetition of another's work cannot be said to promote the progress of science or the usefùl arts and, as such, confers no notable advantage upon the public. It was for this reason, 1 would suggest, tliat, in the Lewis case, Lord Langdaie found that the defendant's work could not be regarded as meriting protection under the doctrine of fair use, but was regarded, rather, as tàIling ivithin the scope of general rules of copyright infringement.
iii) The Rnrior~nlebelziizd Fair- Use n The applicability of the defence witli respect to the right to extract for the purposes of criticism was detemined in the cases of PVhitrirrgjzlani v Wooler (2 Swans. 428 (18 17)), and Bell v Whitehead (8 L.J. (N.S.) Ch. 14 1 ( 1839)). Questions as to the quantity allowed to be taken within the scope of the defence were approached by the court in Wilkilrs v Aitkin ( 17 Ves. (Ch,) 422 (18 IO), Mawman v Tegg (2 Russ. Ch. 385 ( 1826) at 393). and Branrivell v Halcolnb (3 My. & Cr. (Ch.) 737 ( 1836). In Bramwell, at 738, Lord Chancellor Cottrnliam opined that "[ilt is not only quantity but value that is always looked to. It is useless to refer to any panicular cases as to quantity." For a full overview of these cases, see Patry, The Fair Use Privilege. sttpr-CI.note 55. at 12-16. '13 2 Beav. 6 (1839). 79 Id. at 9. 1 Camp. 93 (K.B. 1807). Although the initial development of a concept of fair use was somewhat piece-meal, and
was carried out absent of any broad staternent of rationale behind the concept, the early
cases seem ro support the suggestion that fair uses were permitted because they involved
"originality on the part of the ... user as manifested in a new work that also promoted the
progress of science and thereby benefited the public."8' While this might be constmed in
part as a recognition of the effort expended in the creation of this cognisably 'new work',
it seems to be that the value attributed to the second work was derived fiom its
perceivable (or constructive) 'newness'. Newness, as a particular quality of the work,
was regarded as pertaining to public benefit by virtue of its contribution to knowledge
and encourarement of learning. The finding of fair use on this basis, then, cm be
understood as an acknowledgement that second author's work fulfilled the purpose of the
statutory sclieme by furthering its instrumental goaIs.
C. ConcI~~sioiison the DeveIopment of Fair Use
On the basis of the above discussion, 1 would suggest that the fair use defence emerged out of a recognition that the express aim of copyright legislation - the encouragement of
learning and the progress of science and the usefil arts - was furthered through the creation of 'new works', even where such works used others' protected expressions in a manner tliat would normally constitute copyright infingement. In recognition of the public benetit sought to be gained from the enactment of a copyright regime, the comrnon
'' Id. at 98 (Eiiiplissis added). The full lest reads: "A review will not in general serve as a substitute for the book reviewed: and even there, if so mucli is extracted that it communicates the same knowledge with the original work. it is an actionable violation of literary property." 82 Patry, The Fuir Use Privifege, supra. note 55, at 17. Law rnouided thé fair use defence to ensure that the effect of the legislation was not such as to defeat its own purpose.
What should be drawn from this discussion is that the fair use doctrine was developed notwithstandin_o the growing concept~ialisationof copyright as the natural right of an author. This wsperhaps not as controversial as it may at first appear: the defence could arguably be based upon the natural rizhts of the second author to the fniits of his labour if it is believed rlzat he did indeed expend sufficient effort in the creation of the secondary work. This esplanation sits fairly easily at least with the concept of fair abndgement.
However. 1 have argued that the overriding motivation for the emerging fair use defence was the recognition that such works rnay benefit the public in the very way envisaged by
Parliament in its drafting of the 1709 Act. If it was also believed that some statutory reward for the second author was justified on the basis of his creative efforts, then this just fits nicsly into the copyright model: the presumption upon which copyright is built, afier all, is that the interests of public and the author generaIIy overlap in the protection of copyri_ohtable works. It seems equally arguable that the interests of the public and authors overlap in the existence of a fair use defence: while the public obtains benefit frorn rnasimisin,a the production of Iiterary works (including the productive uses of secondary authors), authors benefit from free access to prior works to aid and encourage them in tlieir production of useful works without facing exposure to the chilling effect of potential liability
If we proceed upon this understanding of the fair use defence - which charactenses fair use as a means by which to ensure the furtherance of copyright's normative aims - then it must be \vit11 tlie recognition that the concept of fair use is not merely an exception to copyright: pro~ection (2 conclusion that tends to follow fiom an author-oriented understanding of copyright law), but rather is an essential and integral part of the copyright system. If the uItimate focus of the copyright regime is upon the benefit derived by the public from the creation of literary works, then a fair use defence must be regarded as a necessary component of the regime, an essential element in the pursuit of this goal.
III. A Brief Conclusion on the Historv of Copvrieht and Fair Use
My intention in this chapter has been to challenge some commonly held misconceptions surrounding the history and origins of copyright law, in order, at least to dilute, if not to fully disperse, notions of copyright as a natural entitlernent belonging to an author. My hope is tliat, by establishing an analytical starting point from which to regard modem copyright Iaw that is removed from traditional and pervasive nghts-based and author- oriented reasoning, 1 will have opened up sufficient space to allow a reconceptualisation
Indeed, al1 production of creative material necessady draws upon that which went before. See. e.g. Jessica Litman, The Public Domairl, 39 Emory L. J. 965 (1 990),discussing the crucial function performed by the concept of tlie public domain, wliich operates as a "device that perrnits the rest of the systern to work of the nature and function of copyright. From a starting point that offers a view of copyright as a functional construct intended to further public policy goals, I hope to locate the fair use exception firrnly within the logic of copyright reasoning. Thus, the histonca1 esplanation provided above for the introduction and development of the concept of fair use was intended to effect this relocation of fair use, establishing its role as an integral inechanism witliin the instrumental underpimings of the copyright system.
I will argue tliroughout the chapters ro follow that, only by reirnagining the foundations of copyright law and by recognising the pivotal role occupied by fair use therein, can the doctrine of kir use satisfactorily perfomi its tùnction. And only when fair use is allowed to perfom its f~rnctionas such, can copyright hope to achieve its public policy objectives.
1 should also point out, however, that it is not necessary that the reader adopt, in its entirety, my interpretation of the origins and development of copyright and fair use, before he or die can accept the critique of modem copyright and fair use offered in the following chapters. My aim in this paper is not sirnply to articulate a descriptive critique of the current state of Anglo-American copyright law and the fair use doctrine, but is also to provide a prescriptive criticism thereof. Based upon the historical analysis above, then,
1 might argue tliat modem copyright law is not tme to its own nature, that it effectively misunderstands itself. However, in the course of this paper, 1 wish to mount a criticism that is not sirnply concerned with whether modem copyright policy and practice has adequately recognised and reflected the mie nature of copyright, what copyright is (as derived from its historical origination). My criticism also goes to the - 1 would suggest, by leaving the raw material of authorship amilable for authors to use" (at 968). For a detailed discussion of more important - question of whether that poIicy and practice is tmly representative of what copyriglit orght to be. As such. it seems to me that a conflicting interpretation of the historical development of copyright or fair use would not be sufficient to dirninish in any way the nonnative criticisms that this paper mounts.
It does seem tàir to Say, however, that the history and the original bases for the development of copyright and fair use offered above, provide a solid foundation upon which to build these normative criticisrns. This historical perspective, 1 believe, strengthens and compounds arguments that cal1 for a departure fkom author-orïented reasoning in copyright analysis, and for the reintegration of the public as the recognised intended beneticiaries of the copyright system.
- -- conflicting visions of authorship and the creative process, see infra., Chapter 5, section 1. CH-4PTER 2: F.4IR DEALING IN U.K. COPYRIGHT L.4W
1. Introduction: A ,Matter of Princi~le it should be clear from the preceding 'historical ovenriew' that, contrary to popular assumption. copyright in its modem fom is, and has always been, a statutory concept. As such, judges in copyright actions have always been bound by legislative languag, and so have presented themselves as having little room to draw distinctions, to analyse purposes and problems, or to recognise and define functions within the copyright regirne'. One apparent consequence of this restrictive analysis is that there has been, and continues to be, an over-reliance upon the body of rules contained in copyright legislation, and a corresponding general failure in the formulation of guiding principles. By failing to expressly forrnulate general copyright principles based upon an evaluation of the function of copyright and the risks it entails, the courts have, over time, consolidated a body of law that is unable to perform its function satisfactorily, and, moreover, that presents great risk to those very elements of society it was intended to protect. As Patterson writes:
"Copyright is too complex a matter, too delicate a subject, to be dealt with by statutes alone. Copyright statutes have provided rules, not principles, and if the principles necessary to a sound body of copyright law are to be formulated, the judges must accomplish the task. Histoiy shows the consequences to be expected if they fail. More important, however, history gives them an adequate basis upon which to proceed.. .."'
Placed in its historical context, it is clear that copyright does not exist for the purpose of rewarding authors for their creative efforts. Even clearer is that copyright does not exist to ensure that authors' receive their just deserts in the form of property rights. Indeed,
I See L. Ray Patterson, Copyrighr in Hisror-ical Perspective, at 229. history wams against such absolutist approaches to copyright. From an analysis of the historical development of copyright law - its purpose and the risks that copyright has been seen to present - can be derived principles that embrace the instrumentality of copyright law. Put another way, in the light of these considerations, copyright can be regarded as no more than a legal tool to be used in the furtherance of public policy goals.
It follows that it is to be limited in ways that are consistent with, and guided by. the objects for which this tool was created. In this way, a process of reasoned and contextual analysis might have resuited in a principled body of copyright law bener equipped to deal with complex copyright issues; issues that "require careful distinction based upon a perceptive awareness of the problems, an understanding of purpose, and an appreciation of fùnction."'
It is therefore clear that, had these facets of the copyright concept been taken into account and allowed to crystallise into a general prïnciple governing the development of copyright, the copyright system would have looked very different fiom the one we have today. I believe, specifically, that this approach would have entailed principled recognition of the interests of individuals and society in the use of copyrighted works.
Uses of copyrighted work that benefit the public in the very way envisioned by the statutory scheme, and that have been put at nsk - to the detriment of society - as a consequence of that scherne, would surely be understood to merit protection as a matter of general principle. The protection of suc11 uses appears to follow logically from the identification of the public as the direct beneficiary of a copyright scheme: if prohibiting
' Id. a certain use does not fit within the wider rationale behind the protection of copyright -
or, indeed, if the use itself can be justified on the basis of that same rationale - then it
seerns clear that this use should not be prohibited. The problem is that, having failed to
generate broad principles that accurately reflect the rationale behind the copyright
systern, the need to protect such uses in the interests of society is not cognisable on the
basis of general principle. Instead, the failure to develop principles that respond to the
historicat reality - recognising the Iimited nature of copyright, its function and its
intended beneficiaries - has allowed copyright to become the almost unlimited right of
the author. It hardly need be said that this result has serious consequences for the fair
dealing defence.
This, however, is not the extent of the difficulty. Not onIy has there been a faihre in the
development of principle, but also the resultant void has been fiIled with philosophical
assumptions regarding the natural entitlements of the author and the concepts of property
ownership that this purported right entails. In the absence of principled reasoning
drawing on the nature and history of the copyright system, the courts resorted to theoretical rhetoric that was wholly inappropriate. Copyright was squeezed into an
analytical framework il1 suited to respond to the demands of instrumental reasoning. As
we saw in Chapter 1, the rights-based rhetonc of property ownership and natural law was
allowed to creep into the copyright analysis, effectively usurping the anti-monopolistic concepts of public benefit and the encouragement of leaming. As such, where there should have been general principles articulating the purpose and nature of copyright,
id. at 228-9. there is now a theoretical discourse concerned with property ownership and natural entitlement. Whereas general principles would have encompassed the need to protect the interests of society in the proliferation of and access to useful works, the theoretical discourse embraces the interests of the author whose rights require protection against the meedy public. C
It is not surprising, then, that the rules contained in today's copyright legidation are not suggestive of any broad principle that might support the interests of users and society in access to copyrighted works. The rules confer wide copyright protection and offer little by way of exception. In fact, for those whose use of copyrighted materials goes beyond simply reading or observing, the fair dealing defence represents the greatest available protection frorn the impact of copyright protection. In this chapter, 1 will suggest that the fundamental defence of fair dealing is presently restrictive, rigidly limited in application, and crippled with arbitrary and pedantic distinctions. In other words, in its current fom, the fair dealing defence is wholly inadequate to perforrn the role that an integrated and instrumental copyright systern would deniand of it. The fact that the interests of secondary users and society are so radically overlooked in modem copyright law is the result of a failure to understand the instrumental nature of copyright law; a failure whose consequences have only been exacerbated by the ill-considered reliance upon a mistaken set of justificatory theories.
1 will argue, then, that in many ways the flaws and imbalances and misunderstandings that pervade modem copyright in general find expression in the statutory formulation of the fair deaIing defence. 1 intend, in the course of this chapter, to provide evidence of the weakness of the fair dealing defence in UK copyright law, 1 also wish to suggest that this weakness is no less than inevitable given the glaring absence of any articulated or developed conception of the pubIic purpose and the role of copyright in modem legal discourse.
II. UK Legislation on Fair DeaIino,
A. The Statutory Historv of Fair de al in^
The doctrine of fair dealing that had developed in the courts over almost two centuries made its first: statutory appearance in the Copy15,oht Act 19 1 1''. Section 2( 1)(i) of the 19 11
Act provided that any fair dealing with any work for the purposes of private sstdy, research, criticism, review or newspaper surnrnag, should not constitute an infringement. In the corresponding provisions of the Copyright Act 1956', it was provided in section 6 that no fair dealing with a literary, dramatic or musical work, and in section 9 that no fair dealing with an artistic work, was to constitute infringement if it was for the purpose of:
"(1) research or private study ...; (2) criticism or review, whether for the work cnticised or reviewed or of another work, and is accompanied by sufficient acknowledgement'."
'' 1 & 2 Geo. 5, c. 46, An Act to Atnend and Corisolidate rlze Law Relating to Copyright. The tenn -newspaper summary' did not extend to a newsreeI: Hawkes CG Son (London) Ird v Purainounr Fih Service Ltd, Cl9341 Ch, 593. In 1952, the Repon of the Gregory Cornmittee recommended the removal of this limitation on the basis that no distinction could rightly be drawn between the latitude to be given to newspapers and that given to broadcast sumniary. This recornrnendation was adopted in the 1956 Act. '3 gL 5 Eliz. 2. c. 74, Att Act ro t~raketrêw provision iu respect of copyright arid relateci nratters. in substitutio~ifor the pr-ovisiorrs of the Copyrighr Act. 19II. and orher enactrnents t-elatirrg rhereto. -Sufficient acknowledgement' was defined in section 6(1O) of the Act as "an acknowledgement identifying the work in question by its title or other description, and, unless the work is anonymous or the author had prcviously agreed or required that no acknowledgement of his narne should be made, also identifLing the author". Section 6 aIso provided that no fair dealing with a literary, dranlatic or musical work was to constitute an infiingement if it was for the purposes of reporting curent events:
"(a) in a newspaper, magazine or sirnilar periodical if it is accompanied by a sufficient acknowledgement; (b) by rneans of broadcasting or in a cinematograph film."
B. The Current Fair DeaIin~Provisions
The present legislation on the law of copyright in the United Kingdom is the Copy-iglzt,
Designs aiid Parei2r.s Act 1988'. Chapter III of the 1988 Act, sections 28 to 76, is concerned with 'Acts Pennitted in Relation to Copyright Works", and contains the present fair dealing provisions in sections 29 to 30. Fair Dealing with a literary, drarnatic. musical or artistic work for the purposes of research or private study does not infnnge any copyright in the work or, in the case of a published edition, in the typographical arrangement". Under section 30(1), fair dealing for the purpose of cnticisrn or review of that or another work or of the performance of a work does not infringe any copyright in the work, provided that it is accornpanied by a sufficient acknowledgement". Also, under
19SS. c. 48. " Section 3 I permis certain instances of incidental inclusion of copyrighted work; sections 32 - 36 provide for permitted uses for the purposes of education; sections 37-44 contain mies regarding libraries and archives; section 45 - 50 concem public administration; sections 5 1-53 deal with designs; sections 54-55 deal wit!! typefaces; section 56 is about works in eIectronic form; sections 57- 75 contain miscellaneous provisions; and section 76 ensures the effectiveness of defences with respect to adaptations. IO Section 29(1). Note that, under the 1956 Act, there was no saving from infringement of copyright in a pubfished edition. Note aIso that multiple copying on behalf of a single individual or upon the concerted request of rnany is not permitted: see section 29(3) and Sillitoe v McGraw-Hill Book Co (UK)Ltd [1983] F.S.R. (Ch D) 545. II Under the 1956 Act this defence applied only to literary, dramatic, musical and artistic works; it now applies to al1 works. 'Sufficient acknowledgement' is defined under section 178: "an acknowledgernent idemiQing the work in question by its title or other description, and identiQing the author unless - (a) in the case of a published work, it is published anonyrnously; section 30(2): there will not be infringemerit where there has been fair dealing with a work (other than a photogaph) for the purpose of reporting current events, provided that there has been sufficient acknowledgement". An acknowledgement is not required in respect of reporting of current events by means of a sound recording, film, broadcast or cable programme".
III. Case Law Under the 1988 Act
Under the current legislation, then, it is clear that the fair dealing defence is not a general defence to copyright infringement. The test is, in essence, a purposive one. That is to Say, it is concerned, not with the effect of the infringing use, but with the purpose for which the use was made. Having strictly delineated those purposes that might corne under the protective umbrella of fair dealing, the Act excludes from this protection any use regarded as having different purposes. A court considenng fair dealing is thus required to examine, firstly, the purposes for which the copynghted material was used, and, secondly, whether this use was 'fair' in the circumstances of the case. The provision also requires, under sections 30(1) and (2)' that there be sufficient acknowledgement by the user of the source of his taking. As such, a third consideration of the court will be whether the defendant has satisfied this condition where required to do so.
(b) in the case of an unpublished work, it is not possible for a Ferson to ascertain the identity of the author by reasonable inquiry". '' This defence has also been extended to apply to al1 works; the exception for photographs is intended to protect free-lance photographers in particutar, whose stock-in-trade wouId otherwise be devalued. " Section 30(3). The purported explanation for this distinction is that on the basis that acknowledgements would unduly clutter reporting by these forms of media . A similar provision was contained in section 6(3) of the 1956 Act. In the following survey of the British courts' approach to the fair dealing defence, 1 hope to show that the current legislation establishes rnany unnecessary hurdles in the path of the defendant; obstacles that, in many instances, prevent the fair dealing defence from operating in a marner congruent with the spirit and rationale of the defence. Bearing in rnind that the fair dealing concept is an integral rnechanisrn within the copyright scheme, and one intended to protect and to turther the policies and goals of copyright, it follows that the current Fair dealing provisions in sections 29 and 30 of the 1988 Act are seriously lacking in their ability to fulfil this role. I \vil1 aIso suggest that the restrictive approach taken by the courts to fair dealing cases is evidence, not only of the weaknesses and flaws within the legislation itself, but also of the failure of the courts to understand the instrumental nature of copyright and the function of fair dealing therein.
A. What's Fair?
Notwithstanding the apparent specificity with which the fair dealing defence has been delineated within UK legislation, the arnorphous concept of fair dealing is one that the
British courts have stmggled to define and to appIy over the many years since its first statutory appearance. In part, this difficulty is a consequence of the vagueness of the tenn
'fair'. The ambiguity surrounding questions of faimess is problematic because, without proper recognition of the nature and purpose of copyright, there is no adequate basis for the principled reasoning or functional analysis that is required if we are to discover what
'faimess' might rnem in a particular instance. In other words, because the broader concept of fairness is dislocated fiom its underlying rationale, it has lost much of its force, and its meaning eludes definition. Moreover, the concept of faimess is firther diluted by the presence of specific purposes lirniting the relevance of fairness pei- se.
With such confusion underlying the IegisIarive langage, it is not hard to see why the courts have struggled to apply the fair dealing defence.
The landmark case of Hrrbbai-d v Vospei-" 1-epresents the first major judicial attempt to define the concept of 'faimess' with respect to the fair dealing provisions contained, at that time, in section 6 of the 1956 Copyright Act. The case concerned a book Lvritten by
Vosper, a former nember of the Church of S~ientolo~q,in which the author relied heavily upon extracts from writings of Hubbard, the founder of the Church of
Scientology of California. Hubbard and the Church brought an action seeking interlocutory injunction to restrain publication of the book, claiming iizrer alia, infringement of copyright. Basing its judgement upon the possibility of a successfuI defence of fair dealing and/or public interest, the Court of Appeal refused to grant an injunction. In his widely quoted judgement, Lord Denning opined that whether a dealing is fair must be a matter of fact and degree in al1 the circumstances of a particular case:
"Ir is impossible to define what is 'fiiir dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing, If they are used to convey the same information as the author for a rival purpose, that may be unfair. Next you rnust consider the proportions. To take long extracts and attach short cornments rnay be fair. Other considerations may come to mind also. But after al1 is said and done, it must be a matter of impression.""
'" [1972] 1 AI1 E.R. 1023 (CA) 15 Id. at 1027. With respect to the reIevance of a "rival purpose", see also British Broadcasritzg Corp v British Sarelliie Broadcasring Lrd Titnes, [i 99 11 2 Al1 E.R. 833 (Ch D), which held that BSB's rivalry with the BBC did not necessariIy take its actions outside the protection of the fair dealing defence. The judsement of Megaw L.J. in the Hzibbar-ci case is also fiequently cited with regard to the amount and importance of the work used by the defendant. Megaw offered the now famous example of a parish magazine reproducing a twenty-word tornbstone epitaph to illustrate that:
" It may well be that it does not prevent the quotation of a work fiom being within the fair dealing subsection even though the quotation may be of every sin_oIeword of the work."'"
Thus, Megaw argued that the question of substantiality was a "question of degree"I7 and not simply a quantitative inquiry. Whether the extracts constituted fair dealing under the
Act was to be decided "in relation do the nature and purpose of the individual
The next major opportunity to tackle the question of fairness presented itself in the case of Beloffv Pi-essdrarn Ltd". The contents of a memo between an employee and the editor of The Observer newspaper had been leaked to a reporter for Tlze Private Eye and been published. An action was brought against The Private Eye for infnngement of The
Observer's copyright in the leaked document. While the action failed due to a technicality regarding assignation, the court stated in obiter that rhere was no defence based on fair dealing for the purposes of crïticism or review within the meaning of section 6 of the Copyright Act:
------lu Supra. note 14, at 103 1. l7 rd. at 1031. IS Id. at 103 1 ; see aiso Bririslr O-ygen Co. Lrd v Liquid Air Lrd (1 9151 Ch 383. In this case, Rorner J. held that the malcing of twelve copies by the defendant, a trade rival of the piaintiff, of a Ietter written by the piaintiff to a customer, was not fair deaiing. The decision was based upon a finding that the number of copies was excessive in relation to the defendant's broad purpose of making the plaintiff s conduct widely known. '719731 1 Ail ER 24 1 (Ch D) "The vice of leak and publication ...clearly in my view constituted dealing which kvas not fair within the Statute. And this unfair dealing goes to the root of the publication. The ground is ampIe to defeat the defence of fair dealing."'"
As such, this case established that a determination of fair dealing required the court to evaluate fairness in relation to the relevant purpose for which the copyrighted work was used". This requirement is related to that established in Joht~sroizer7 Berrrar-d Jones
which held that the mot ive behind the use of the was a relevant factor to be considered in a fair dealing inquiry."
Other relevant considerations camed out by case law include whether or not the copyrighted work has been published"; whether the taking was necessary or grat~itous'~; and the nature of the allegedly infiinging material and the reIation it bears to what has been taken?
20 Per Ungoed-Thomas J., id. at 263. '' But see also Tirne Wanzer Entertainrner~rCo Lrd v Channel 4 Televisiort Corp Pic [1994] E.M.L.R. 1 (CA). where Neill L.J. refused to hold char a defence of fair dealing could be defeated on the ground that the defendant did not have -clean hands' in his original acquisition of the work with which he has 'dealt'. Rather, the issue is the ueatment of the copyright material: *'[C]riticism of a work already in the public domain which would otherwise constimte fair dealincg for the purposes of section 30(I) would seldom if ever be rendered unfair because of the method by which the copyright material had been obtained." Per Neill L.J., id. at 17 - 18. " [1938] 2 Al1 ER 37 (Ch D) 23 See also Associared Nervspapers Group pic v News Group Newspapers Ltd [ 19 861 R,P.C 5 1 5 (Ch D) (Patents Court): it was held that, even if The Sun S use of correspondence between the Duke and Duchess of Windsor, over which The Daily Mail had acquired the rights, had fitted into the category of 'use for the purpose of criticism, review or reporting of current events', the use would not have been fair dealing because its objective in publication was just to attract readers and not to achieve a fair dealing objective. British O.tygen Co. v Liquid Air Ltd., supra. note 18. Romer J, expressed the opinion that the publication of previously unpublished material could never constimte fair deaIing. But see Hubbard v Vosper,slipra. note 14, which held that publication rnay not be relevant where a work has been widely circulated. This reasoning was followed in Disrilfers Co (Biochemicais) Lrd v Times Nervspapers Ltd, [1975] 1 Al1 E.R. 4 1 (QBD), aIthough Talbot J. held that the circulation of the relevant works was not sufficiently wide to allow a finding of fair dealing with respect to their copying and distribution. 25 Associared Nervspaper Group pic. v News Group Nervspapers Ltd., supra. note 23. '' Silliroe v McGraw-Hill Book Co., supra. note 10. This case also held that a person cannot fairly deal with a work on behalf of others. B. Fairness v, Fair Dealine
Thus, over time, the courts have succeeded in deveIopin,o a fairly comprehensive list of factors to be taken into account in deterniining the applicability of the fair dealing defence as it appeared in its statutory forrn. These factors, however, can do no more than suggest a possible answer to the question: "1s this dealing fair?". It is crucial to note, however, that, for better or for worse, the answer to this question may differ geatly from the answer to the question: "1s this 'fair deaiing'?".
Such considerations, which assist the court in deciding if a particular use is fair, can only be relevant where a use falls within one of the specific exceptions laid down in the fair dealing provision; wherever there has been an unlicensed use of a substantial part of a copyrighted work, any defence must be brought squarely within one of these purposes.
As such, the question of fairness constitutes no more than a second branch of inquiry to be undertaken only once it has been established that the use at issue is amongst the enumerated uses, and satisfies the specified criteria laid down in the Act. Thus, a finding of fairness cannot be sufficient, in and of itselc to support a finding of fair dealing. The fair dealing provisions, then, do not provide a general defence to copyright infringement, but rather, they operate in an arbitrary way to allow the use of the copyright materials in specific circumstances.
Because the fair dealing provisions have been disconnected from any notion of the underlying purpose of copyright, they have been charactensed as specific exceptions to the general doctrine of copyright. As a result, stringent tests have to be satisfied before the fair dealing provisions can be applied. It would therefore seem that Justice Laddie was correct to observe, in the recent case of Pro Sieben Media AG v Car-lton UK
Televisior~Li&', that :
"the provisions are not to be regarded as mere examples of a seneral wide discretion vested in the Courts to refuse ro enforce copyright where they believe such refusal to be fair and reasonable-""
In its Report on the Law of Copyright and Designs 1977", the Whitford Cornmittee recommended that the fair dealing defence ought to be extended and ought not to be restricted to particular works, particular fornis, or particular media. It was suggested that a general defence of fair dealing should be enacted, which would apply in cases where there was no conflict with normal exploitation of the relevant work, and no unreasonable prejudice to the legitimate interests of the copyright owner:
"Any sort of work is likely to be of public interest, and the fieedom to comment, criticise, to discuss and to debate, ought not, in principle, to be restricted to particular foms ('criticism or review7 or 'reporting current events') ...[ A] general exception in respect of 'fair dealing' ...would be sufficient to cover the interests of the press, publishers and broadcasters, reviewers and commentators. Such an exception should also cover 'fair dealing' for the purposes of research or private study, and there should be no need to refer to this field expressly." '"
-- - " LI9981 F.S.R. 43 (Ch. D); overmled [1999] 1 W.L.R. 605 (CA). " [ 19981 F.S-R. 43 (Ch. D), at 49. The full text reads: "[Tlhe court [does not have] an unfettered right to refuse to enforce copyright where it thinks that to do so wodd be 'fair'. For bener or for worse, the 11988 Act] has set out a number of specific exceptions to the bIanket scope of copyright infringement,... Instead, Chapter III of the Act consists of a collection of provisions which define with extraordinary precision and rigidity the ambit of various exceptions to copyright protection. Aithough it is apparent that these provisions are designed to address situations where there are thought to be public policy grounds for restricting the copyright owner's rights, it is the legislacure which has specified where and the extent to which the public policy overrides the copyright. The courts rnust construe the provisions. Within proper limits, they may do so in a way which is designed to make reasonable sense. But the provisions are not to be regarded as mere exampies of a general wide discrction vested in the courts to refuse to enforce copyright where they believe such refusa1 to be fair and reasonable." Id. at 48-49. '"The W hitford Repon: Copyright and Desigrzs Law, cmnd 6732. It was hoped that this general provision. which was to utilise the terms of article 9(2) of the Berne Convention3', would provide the courts with a statutory guideline as to the general spint in which the permitted acts should be interpreted3'. As we have already seen, however, this approach was not considered acceptable by the govemment, and so was not followed in the drafiing of the 1988 Act. The result is a copyright statute wherein forty-nine provisions lay dom specific acts that may be done with copyrighted works.
Such legislative architecture clearly operates to restrict the growth or expansion of the fair dealing provisions, for, as the Whitford Committee warned:
"The greater the nurnber of special cases, the greater the scope for uncertainty [regarding the applicability of the fair dealing defence] in relation to cases not specifically dealt with.""
It is for the courts, then, to navigate amidst this plethora of provisions and to establish whether the situation has arisen in which one or some of thern might be appIied. Use made of copyrighted material for the purpose of discussion, commentary, analysis or
'elaboration of idea~'~",even where, as a matter of impression, such use is 'fair', may therefore be excluded from the defence of fair dealing on the ground that it falls short of constituting 'criticism or review' or 'reporting of current events'. Questions of degree or impression or effect remain to be tackled only upon arriving successfully at an enurnerated, permitted dealing that satisfies al1 additional criteria.
'O Id. paras 676-677. 3' Section 9(2) of the Paris text of the Berne Cor~ventirî~~provides that the signatories rnay, under their domestic laws, permit reproduction of works in certain special cases provided that such reproduction does not conflict with normal exploitation of the works and does not unreasonably prejudice the legitirnate interests of the authors of the works. Robert Merkin, Richards Butler on Cop.vr-ight,Designs and Parenrs: The New Law, 1989, at 88. 33 The Whitford Report, supra. note 29, at para 668. " Id. at para 666. Several recent cases that have corne before the LK courts are illustrative of this
restrictive element in the UK Iaw on fair dealing. What is perhaps most striking about the
British courts' struggle with the concept of fair dealing is an unpredictable altemate
denial or recognition of the defence based upon seerningly formalistic grounds":
decisions often rest upon a findins that something does or does not fit into the definition of "current events", or "criticism or review", or "sufficient acknowledgement", or "clear
public interest" and so forth. However, it is not unreasonable, 1 believe, to assume that, given the great uncertainty surrounding the meaning of these concepts, such apparently formalistic determinations are often amved at on political or emotional grounds. This follows from recognition that:
"'Cnticism or review' and 'reporting current events' are expression of wide and indefinite scope. Any atternpt to plot their precise boundaries is doomed to failure ... [Tlhe nearer that any particular derivative use of copyright material cornes to the boundaries, the less likely it is to make good the fair dealing defen~e.''~~
The difficulty, 1 would suggest, once again rests in the vagueness and indeterminacy of the specific rules without their contextualisation within a broader concept of copyright's social purpose.
C. 'Criticism or Review'
3 5 See Grarme Johnston, Copjv-ight arrd Freedorn of the Media: A Modest Proposai, 1 8( 1 ) E.I.P.R. 6 (1 996). 36 Per Robert Walker L.J. in Pro Sieberz Media AG v Carlton UK Teievisiorz Ltd atrd Atrother, Cl9991 1 W-L.R. 605 (CA), at para 37. In the case of Time Wanzeï-Elzter-tairitrzeïzt Co Lrd i7Cizannel 3 Televisiotz Corp Ph?. the first case to corne before the courts concerning the parameters of section 30(1), Channel
4's actions were held to be protected by the fair dealing defence. The case concemed a
Channel 4 television documentary entitled For-bidde,z Fn&, which contained nvelve extracts from the Stanley Kubrick Film A ClocX-.vot-k Orange. representing 40% of the documentary as a whole. The film had been withdrawn from circulation in the early
1970s. following a spate of copycat killings. In support of its contention that the defendants were not able to rely upon the fair dealing defence to avoid a finding of infringement, the plaintiff s argued inrer alici that the purpose of the programme was not criticism or review, but had the ulterior motive of giving an (unlicensed) public viewing of the film's most controversial scenes as part of a sensationalist campaign for the film's re-release. This would suggest that the decision to withdraw the film, and not the film itself, was the subject of 'criticism or review'. Henry L.J. held that:
"That decision [to withdraw from circulation a film in the public domain] is clearly a suitable matter for public debate and so for public criticism, and it is clearly highly relevant to that criticism to illustrate by way of excerpts relevant qualities, whether positive or negative, of the film, so that the public may form a view of the decision criticised and of what they are missing or rightly being spared."
This opinion was in line with the authorities" and rightly found that mixed motives need not entail the defeat of the fair dealing defence. However, possibly in an unfortunate attempt to counter-balance this finding and so to avoid criticism from copyright proponents, Henry L.S. was careful to restrict the impact of his decision:
3 7 Supra. note 2 1. 3S Henry L.J. relies upon Lord Denning's judgement in Hubbard v Vosper, supra. note 14. where it was held that criticism need not be directed at the workper se, but could be directed at the thought or philosophy behind the work. ''[I]f the intention was to profit from the breach of copyright in [A Clocht~ork Orange] under the pretence of criticism, then no marrer ho~t*fairor balarzced or t-epr-esenrative dze infiiulging excerpts rnighr be. the purpose would not be that of criticism or review, and so would not have the protection of the section 30 defenceSw3"
In my opinion, this statement powetfûlly explicates the extent to which the legal
dichotorny between 'fairness' and 'fair dealing' is problematic. It has been suggested in
response to this staternent that Henry L.J. wsnt 'too far'". However, while the statement
rnay be incon-muent with our sense of justice. it is my submission that it is not inaccurate
with regard to the current state of UK copyright law. In Hzibbar-d v Vosper4', Lord
Denning opined that "it is not fair dealing for a rival in the trade to take copyright
material and use it for his own matenal." Thus, in Associated Newspapers Gi-orip Plc v
News Gr-orcp Lrd.", which concerned the printing of letters whose exclusive rights were owned by the Daily Mail, The Szor was refused the defence of fair dealing due to the
motive with which the leners had been copied. It was held that the defendants' motive had not been "for the purpose of criticism or review", but rather, "the reason that The Sm
[was] pnnting these letters ... [was] in order to attract readers". This motive was, in itself, sufficient to remove the use from the protective scope of the fair dealing defence.
In the recent case of Banier v News Grozip Newspapers Ltde4', The Sun had printed an unlicensed photograph of Prïncess Caroline of Monaco. When the photographer brought an action for copyright infiingement, the defendant claimed that the photograph together
39 Typescript of Henry L.J.*s unreported judgement, at 27 (Emphasis added). See also David Bradshaw, Fuir Deulirrg arrd the ClocAx~orkOratrge Case: '-4 Thieves ' Charter ', S( 1) Entertainment L. Rev. 6 ( 1994). 4o /ci. 4 1 Supra. note 14. 42 Stcpra. note 23. with the accompanying article amounted to fair dealing for 'the purpose of criticism or
review. However, Lightman J. found that "it was totally unreal to suggest that the
objective in the publication of Tize Srrn was to illustrate any review or criticism of any
copyright work. Rather, it was held that the use ofthe picture simply had the purpose of
making the news story 'corne to Me'. As in .-issociared Netvspapei-s, the judge considered
that the defendant's motive was to attract readers and, as such, the pubkation could not
be fair dealing with the copyright workG. It is notable that, because the work in question
was a photograph, it did not corne within section 30(2) on the reporting for current
events. As the 'purpose' of the copying did not fa11 within either section 30 category, it
became rrntzecessaïy to approach the question of 'fairness' pet- se.
D. 'Reporting Current Events'
The British courts have also had several opportunities to define to scope of the section
30(2) defence regarding the reporting of current events. In the case of BBC v Brifisiz SXy
Sare[Zire Brondcastitzg Ltd (BSB) '5, BSB were unable to obtain broadcasting rights from
FIFA to broadcast the World Cup finals. BSB videotaped the BBC coverage of the games
and showed short extracts therefiorn to illustrate the results of the matches as they were
reported on BSB's Sportsdesk programme4" Scott J., citing Lord Denning's 'matter of
impression' test4', reached the conclusion that: "the use of the BBC materials falls ...fairly
" [ i 9971 F.S.R. 8 12 (ChD). &a See also. Alex Wilson, Copyright - Fair deaiitlg, 19( 1 1 ) E.I.P.R. D287-288, 1997. " Srrpr-a. note 15. 46 The excepts vaned in Iength from 14 to 37 seconds. camed a BBC credit, and were shown up to four tirnes in the 24 hours following each match, The excepts featured one goal or 'the best bit' from each garne includinç the players' and crowd's ceiebrations. '' [1972] 1 AH E.R. 1023 (CA) Id. ar 1027. See stp-a., note 15. and squarely within section 30(2) of the 1988 Act"? In allowing the fair dealing
defence, Scott J. held that the World Cup matches were current events when the BSB
programmes were transmitted, and that these programmes were genüine news reports.
albeit confined to news of a sporting nature. One of the factors considered in the
decision. then, was whether there had been any other purpose (any "oblique motive"'")
apart from the reporting of current events that wodd preclude a finding of fair dealing. In
the broadcasting world the credibility of television companies is largely dependant upon
the ability to report current events; the cornpilers of the 'Sportsdesk' programme clearly sought to make programmes that would be attractive to viewers, sponsors and advertisers.
However, in .subtle contrast to the section 30(1) cases of Associated Newspaper-s and
Banie?', Scott J. considered that, if a programme is a genuine reporting of current events,
it would be 'absurd' to Say that the endeavour to make the programme more attractive was an alterior purpose which defeated the fair dealing defence. Scott J. went on to find that the use made of the excepts was 'fair' within the meaning of the Act.
Thus, a case that concemed commercial rivalry and the acknowledged purpose of building audience loyalty was not outside the protective scope of section 30. This decision effected an extensive limitation upon the monopoly obtained through the contractual right to exclusive coverage of events. Scott J. was dismissive of the daim made by the BBC's managing director that such a limitation would produce anarchy in
Supra. note 15, at 845. -1'1 Morton J. in Jollnstone v Beruard Jones Publicarions Lld., supra., note 22; see also accompanying text. Associaled Nervspaper Grorcp pic. v News Group Ncwspapers Ltd., supra. note 23 ; Barlier v News Gr-oup Newspapers Lrd., supra. note 33. broadcasting, identieing this claim as no niore than the usual plea of those who have previously enjoyed a monopoly and see that rnonopoly being threatened".
This decision can, however, be contrasted against that of Lightrnan J. in the case of The
.Veeit-spaper Licensitig Ageticy Ltd v Marh & Spencer pk5'. which concerned the pnctice of M&S in its employment of a press cutting agency to scan newspapers and provide copies of articles therefrom. These press reports were then circutated amongst relevant employees in order to allow M&S to monitor its public opinion. Lightman J. rejected the defence of fair dealing under section 30(2), holding that what the defendant was copying could be said to be 'news', but it could not in its entirety be said to be the reporting of
'current e~ents''~.The judge reached his conclusion notwithstanding his interpretation of the role of section 30(2) in the fair dealing inquiry:
"[Tlhe first hurdle to be surrnounted by a defendant invoking the fair dealing defence ... is to establish that the dealing with the copyright work is part of an esercise of 'reporting current events'". There is a public interest reflected in section 30(2) of the Act in the reporting of current events and this public interest justifies ovemding any barrier placed in its way by the law of copyright. A liberal construction is to be placed on the words 'reporting of current event~'."'~
See Nicholas RevilIe, Chaiieilging rlie Bruadcasring Monopo[v, 89 (1 1) Law Society's Gazette 17 (1 8 March 1991). Reville warns that the extension of the tàir dealing exception to broadcasrinç copyright in section 30(2) of the 1988 Act, and its interpretation in the BBC case, has resulted in the important erosion of the absolute monopoly to which a propnetor of a broadcasting copyright was previously entitled- " Cl9991 R.P.C. 536 (Ch D). 53 Amongst the copied materials were reviews of music albums, "lifestyle articles on choice of undenvear", persona1 interest sones and an interview with former security chief Dame Stella Rirnington. These were considered to constitute neither current events nor news. 54 Lightman J. thereby recognised the decision of Robert Walker L.J, in Pro Sieberr Media AG v Carhot1 Television Ltd, supra. note 36, who held that the words "for the purposes of reporting current events" should be Iooked at as a composite phrase, and the words "in the context of '-or "as part of an exercise in" could be subsrituted for "for the purposes of" withour any significant alteration of meaning. 55 Prr Lishtman L.J., st~p~-a.note 52. at 546. In his judgement, Lightman J- expressly recognised that Chapter III of the Copyright Act
was directed to achieving the proper balance behveen the protection of the nghts of a
creative author and the wider public interest'". He thus located the exceptions to
copyright protection firrnly within the structure and aims of the copyright regime as a
whole, Having identified the role of fair dealing and the two strands of a fair dealing
inquiry, Lishtman J. concluded, with respect to the first strand of inquiry that:
"The threshold is not high or the hurdle difficult to sunnount. The value pIaced on freedom of inforrnation and freedom of speech requires that gateway to be wide, The constraints on abuse of this freedom lies in the need to sumount the second hurdle [of faimess in the circumstances of the case]"."
Jer, it was held that the material copied by the defendants could not overcome even
this easily sunnountable hurdle, and so could not corne within the scope of the fair
dealing defen~e.'~
This conclusion differs from that of Jacob J. in the case of Hyde Park v Yellaii&'. which
followed hot on the heels of the Pro Sieben"" and M&S decisions. The Swl newspaper had
published photographie stills from the security video system installed in the home of
Mohammed Al Fayed. These photographs showed the time interval between the amval
SC1 Please set: i~flru.,Chapter 4, Section II. B. ii) for a critique of this version of the 'balancing' concept. 57 Pet Liçhtman L.J., supra. note 52, at 546. 5s Lightman J. expressed the opinion that the term 'current events' was narrower than 'news' since it did not excend to reports of past events not previously known or of only histoncal interest. Publication of matters that were not current events could only be justified if necessary to understand, explain or give meaning to a report of current events. Of course, as Johnston observes in Copyright alrd FI-eedoniof the hfrdia,supra. note 2 1, this raises interpretative diffictilty: how to draw the 'current'i 'past' theline. There is no such thing as a discrete event. The more narrowly the word 'current' is constmed, the more impotent the defence. Johnston reminds us that the narrow concept of fair dealing in cases of crîticism and review is largely to prevent cnticism as being used as a cover for reproducing a copyrighted work. Arguably, the situation should be quite different in the case of reporting news, which involves the dissemination of information in the public interest. '"Cl9991 R.P.C. 655 (Ch D). and departure of Dodi Al Fayed and Diana on the day before their deaths, and were
published in response to aIlegations made by Mohammed Al Fayed a few days earlier,
concerning the duration of this visit. Applyin~Pro Sieben, Jacob J. held that the defence
of fair dealing under section 30(2) succeedsd"'. In response to the plaintifrs argument
that. because at the time of pubIication the events in question were already over a year
old, these events could no longer be considered 'current', Jacob J. argued that this
represented "far too narrow a view of the meaning of 'current events'""'; the events had
again been put into the public domain, and were still the subject of much public discussion. Of course, it is worth beanng in mind that, if Jacob J. had chosen to be
"pedantic" about the meaning of the word 'current', then it wouId not have been open to him to find fair deaIing, regardless of the wider public interest that section 30(2) is
intended to represent.
E. Some Comments on the Case Law
Having overviewed the development of case law in this area, 1 hope it is clear that the first hurdle to be overcome in the bifurcated fair dealing test is unpredictable, political, and capable of manipulation and distortion with respect to the uses to which it applies.
Moreover, it is capable of automatically precluding a use from fair dealing protection without any consideration of whether a dealing may, in fact, have been 'fair'. Thus, through a little legalistic prestidigitation in this first branch of inquiry, a judge rnay avoid explaining ivizy it is that he considers something to be fair or unfair. The question of
60 Discussed infra., section F. O l It should be noted in retation to the above discussion that the fact that the informant was paid and the newspaper expected to make rnoney from publishing the information did not derogate from the finding of fair dealing; supra. note 59, at 662-663- purposes and motives thereby allows for judicial pronouncement without any open
discussion of the 'impressions' upon which determinations for this frrst 'hurdle' are
clearly, if implicitly, made.
More importantly, it follows that the court is thereby able to reject the fair dealing
defence without any reference to, or any consideration of, the Iarger aims of the copyright
system. The question of the relationship between these social aims and the particular use
in question is therefore lefi untouched.
F. A Perfect Illustration: The Pro Sieben Decision
We have arrived at an appropriate point, then, at which to discuss the Iandmark decision
Pro Sieben Media AG v Carlton Television Ltd"3; the contrast between the Chancery
Division decision of Laddie J. and that of Walker J. in the Court of Appeal, is, in itself,
illustrative of some of the difficulties that the case history tends to suggest.
The Pro Sieben case concemed the appropriation by Carlton TV of a 30 second extract of a German television programme and the incorporation of that extract into a progamme of
its own. One of a series of current affairs programmes broadcast by Carlton TV, entitled
Selling Babies, examined the issue of 'chequebook journalisrn', and included a sequence taken from an interview broadcast by the plaintiff, the German television Company Pro
Sieben, as part of its 'TAFF programme. The interview was with Mandy Allwood, a woman who was carrying eight live embryos after fertility treatment and was intending to cany thern al1 to term. Because Pro Sieben had been @en the exclusive rieht to broadcast the interview in Germany. the defendant. who admitted copying a 'substantial part' of the interview, sought to rely on the fair dealing defences in sections 30(1) and
(3)-
rj The Decisimz ar Fi,-sr1izsrarzce
At first instance, Laddie J. held that the acknowledgement displayed in the estract (the small '7' that was the logo for Pro Sieben) was insufficient to satisS the acknowledgement requirement under the fair dealing provisions. According to Laddie J. the symbol could no1 be understood by the audience as referring to any person at all, let alone Pro Sieben. As such, the rejection of a section 30(1) defence rested on this small but crucial ground; a finding of insuficient acknowledgement is enough to preclude the possibility of fair dealing. Laddie J. also opined, however, that the inclusion of the copyright excerpt was neither for the purpose of cnticism or review, nor for the purpose reporting of a current eventu. It was considered instead that the primary purpose behind the use was to denigrate the practice of chequebook joumalism and to ridicule (as opposed to criticise) Pro Sieben for having paid £50 000 for an interview with Ms
Allwood. Thus the defendant had failed to discharge its onus of proving that its purpose, or any significant part of its purpose, wns the criticism of the TAFF programme.
Furthemore, the use could not fa11 under section 30(2) as there was no claim that the defendant had included the excerpt to report upon the Allwood story, nor could it be accepted that the extract was included to report on the fact of Allwood's interview with
" Sqm. note 27. Pro Sieben? 'Current events' is not synonymous with 'current affairs- but rather is
limited to specific and recent happenings such as a sporting event or a particular public
demonstration, Say. The terrn cannot, therefore, be understood as embracing
cornmentaries upon more general subject matter, such as a recent trend or social
phenomenon6%The real purpose of the use in this case, then, could not relate to a specific
event, and so could not fa11 within section 30(2). Consequently, no question of fairness
arose-
In reaching this decision, Laddie J. made clear his perceived role in determining whether
there could be a defence of fair dealing, and the role of fair dealing itself, within the
copyright scheme. Laddie J. correctly emphasised that the 1988 Act conferred upon him
no general discretion to dispense with copyright protection. In his introductory
cornments, Laddie J. observed the important fact that the fair dealing provisions did not
provide a general defence to copyright infringement or a general wide discretion to refuse enforcement of copyright wherever this might be deemed fair, but rather they arbitrarily
6-r If the purpose had been the reporting of current events by broadcast, section 30(3) wouId apply so that a sufficient acknowledgement need not have accompanied the derivative work. 65 Crucial to this finding was the fact the extract did not show the interview but rather a clip of Ms Allwood and her boyfriend visiting a toy store to buy eight teddybears. Laddie L.J. reasoned that "[ilf [Ms Byme, the editor of Sellirlg Babies] was going to report the fact that Ms Allwood had given an interview to German television, it is difficuIt to see why this particuIar 30-second extract was used. It does not even show Ms AIlwood being interviewed. The fact of a German interview was of no significance to the message Ms Byrne was trying to pet over in her programme." Supra. note 28, at 60-61. 60 Laddie L.J.. appeared to accept the argument put fonvard by the plaintiff that "[section 30(2)] is not concerned with current affairs but current evrnts. that is to Say specific and very recent happenings ... Further. this section does not refer to -commenthg on*cunent events but only to 'reponing' them." Supra. note 28, at 53. See Mark Elrnslie, Copy-iglzr - Scope ufFair Dealing Provisions in Respecr of Critickm or Review, 10( 1) E.I.P.R. 1998, at N-8. EImsIie argues that Laddie's position "leaves Iittle or no scope for a defence in cases where what is being reponed is not a factual event like a Football match, but a social trend or phenomenon, as here. The defence is driven to find a specific 'event' to which the use can relate, and is thereafter prevented from having reference to the real purpose of the use, which is to comment on the phenomenon (the current affair)." Id. at N-10 perrnitted certain specified uses of copyright works"'. Perhaps unfortunately, this appears to me to be an accurate representation of the current statutory fair dealing defence in the
UK copyright regimebs.
io Tlle Decisioi~of rhe COLU-rof &peul
However. on appeal Robert Walker L.J. arrived at the polar opposite conclusion on al1 three issues before the court. It was held first that the purpose of making Selling Babies was to criticise works of chequebook journalism in general, and the recent treatrnent of
Ms AHwoodYs story in particular. This, he believed, was the likely impact on the audience: Laddie J., it was argued, ought to have given less consideration to the subjective intentions and motives of those involved in the production of the relevant material. The use of the extract was considered to be fair because it was short, and the words of Ms. AIlwood were not audible. .Moreover, it was held that there had been sufficient acknowledgement simply by the use of the logo by which the author usually identified itself. Robert Walker L.J. also found that a defence under section 30(2) would have prevailed: the outcome of the pregnancy was a current event of real interest to the public, and the fact that a German television had paid £30000" for an interview was "an event of limited and ephemeral interest, but still a current event".
iii) Conclrtsions on the Pro Sieben Case
6 ï See srcpi-a., note 28 and accornpanying text, 6S It seerns likely that Laddie L.J. also regarded this as unfortunate- His staternent of the law, I would submit, was intended more as a criticism than a cornmendation; his interpretation of the law should not, then, be understood to be his stamp of approval. Perhaps even the opposite; see id. See also, Laddie, Cop~~igh~:Over-Srrerzgth. Over-Regrrlared. Over-Rared, 1 8(5) E.I.P.R. 253 [ 1 9961, and infva., section IV. B. 1 have attempted to make apparent. in the case law discussed above, the way in which,
although there appears to be a substaiitially unified approach to the relevant
considerations to be undertaken in fair dealing cases, these considerations have been
applied by the courts with smkingly different results. This is equally true of the
formalistic branch of inquiry inro the applicability of section 30 provisions, as it is of the
less formalistic 'matter of impression' evaluation of faimess. Of course. different fact
patterns may determine different conclusions on the panicularities of the case, but in Pro
Siebeir we see the same considerations applied to the same facts with a result that is, on
every relevant issue, entirely opposite.
In my opinion, the Appeal Court's conclusion is more desirable, politically or as a
'matter of impression', than that reached by Laddie J. As a social phenornenon, chequebook journaiism is a subject that merits public examination and critique. The
infi-inging programme, then, provided a useful commentary upon a matter of public concem without effecting any notable damage upon the plaintiff s copy~-ight'%r upon the wider incentive system. Certainly, then, this is the conclusion that would have most to recommend it, were an analysis to be undertaken in the light of public policy and copyright's social purpose.
However, with respect, 1 believe that, unfortunately, this decision does not represent the present law on fair dealing. As both courts rightly pointed out, an analysis of faimess as a
09 This sum was misstated as £50000 in the Carlton report- 70 Laddie J. noted that the infringing programme "was not intended to compete with and thereby devalue the interview Pro Sieben had obtained with Ms Allwood." Supra. note 28, at 62. He also noted that the programme's editor "sincerely thought that what she was doing was for the public good." Id. at 6 1-62. matter of impression cannot be attempted until there has been a prima facie determination of the appiicability of the fair dealing defence: "any defence under Chapter III must be brought squarely within one or more of the sections"". The Court of Appeal, however, appeared to understand this as meaning that any use which seerns fair must be brought squarely within one or more of the sections. While 1 hesitate to agree with Jererny
Phillips", 1 find myself sharing his opinion in this instance. According to Phillips:
"Laddie J. rnay be criticised ... for taking the troubIe to read the words of section 30(2) and applying them in their normal meaning ... [Plerhaps an interview with Ms Allwood on ber pregnancy could equally be said to be fairly dealt with if it were incorporated into a programme on current fashions in the teddybear trade.""
I wiil, however, differ with Phillips on this point: by drawing attention to the questionable Iogic of the Court of Appeal's judgement, my aim is to substantiate rny criticisrn, not of the Court itself - whose activism 1 welcome - but rather, of the legislation that the court seeks to apply. Simply by applying the words and their normal meanings contained in the fair dealing provisions, the trial court was prevented from reachinz a conclusion that made sense within the larger goals of the copyright scheme.
The only way that the Court of Appeal was able to reach a decision that made sense was to twist the meaning of those words and rnisapply the provisions. This is clearly
-- 71 Supra. note 36. at para- 27. -7
'- In Iiis case comment Fair Stealirrg alrd dre Tedajl Brars ' Picttic, 1 O(3) Ent- L.R. 1999 57-60, Jeremy Phillips suggests that he belongs to the sâme category as "those who would consign the doctrine [of fair deaIing] to the same dark corner of heIl as compulsory purchase, the forced gifi of copies of new books to copyright depository libraries, press-ganginç, droit du seigneur and other legirirnised rrespasses ort Izurnan rig11r.s."Id a[ 57 (emphasis added). '' Id at 58. This criticism, 1 would argue, also apphes ro Robert Walker LJ.'s conclusion with respect to section 30(1). In Hubbard v Vosper, supra. note 14, ir was held that the fair dealing defence can apply where the criticisdreview is of the "doctrine and phiIosophy" expounded by the copyright work ("the thoughts underlying it as expressed in the words"). in Tirne Wurner Enterfainrnmt Co Lrd v Chatitzel4 TeIevision Corp Pic, supra. note 21. this was extended to cover anything that is "inseparable" from the copyright work. In the Iight of these tests Laddie J.'s decision that the criticism of chequebook journalism was too far removed from the copied extract, is conviiicing. indicative of a serious flaw in the statutory formulation of the fair dealing defence: it
suggests that, at present. the defence is incompatible with the underlying rationale behind
copyright, and is therefore unable to perfann its role in the furtherance of the systern's
social objectives.
G. An Analvsis of Fair Dealing: Before the Courts
One cannot help feeling that the conclusions reached regarding the applicability of
section 30, often turn upon the impression Iormed by the court as to whether the use is
fair. Where the infringing uses appeared fair to the judges they were generally found to
satisfy sections 30(1) or (2) and (3), thus allowing the judgement to turn upon the
question of fairness. Where uses were thought unfair, they were found not to fit into the
section 30 categories or not to satisS, the acknowledgement requirement. In al1 the cases
under the 1988 Act discussed above, not one decision found that the use made of the copyright work did not fit into either of section 30(I) or (2), while suggesting that the use would othenvise have been considered 'fair'. Furthemore, only one decision held that the use did in fact fit into section 30, but was nonetheless unfair?
It could, of course, be argued that this point is largely meaningless as, in the last instance, the courts are, at least, arriving at appropriate concIusions: if this is how the courts work, then cases where dealings are 'fair' will be allowed, and, in cases where the dealings are unfair, the defence will be refiised. Indeed, this observation may tend to suggest that the
7J In PCR Lra' v Dow Jones Teferare Lrd, [199S3 F.S.R. 170 (Ch D), a journaIist had obtained an unauthorised copy of a report on the cocoa crop in the Ivory Coast, and used these material as the basis of three articles published by the defendant. The judge accepted that the purpose of the defendant's artides bifurcated approach to fair dealing, whereby a defendant must overcome two hurdles, has little impact at al1 upon the application of the doctrine. The end result is, after all, nearly always the same as it would have been follotving a general inquiry into the fairness of the dealing. 1 believe, however, that the survey of case law under the 1988 Act contains a much more important message than this.
FirstIy, it ought to be remembered that the decision making process rnay not, and, 1 would suggest, should not, operate in this way. Where an inquiry is correctly undertaken in two separate - if ovedapping - areas (the prima facie applicability of section 30 and the determination of fairness), then a decision in the first area of inquiry may render unnecessary and irrelevant any consideration regarding the second area. Thus, for example, in Tinte Warner, Henry L.J. rnight reasonably have found that there was no sufficient connection between the use of the extracts fiorn A Clockwork 01-angeand the criticism of its withdrawal from circulation: in Pro Sieben, the Court of Appeal rnight have been forgiven for finding, as Laddie J. did, that the extracts taken from the TAFF report were not used for the purpose of criticism or review, or that there had simply been insufficient acknowledgement. In any such situation the court is excused from undertaking an evaluation of the fairness of the useÏ5: indeed, it becomes impossible for the court to make a decision based upon faimess considerations.
was the reporting of current events, protected under section 30(2). However, it was held that, on the facts, too much material had been taken to satisfy the test of fair dealing. 75 Cp.. e-g., Laddie J. in Pro Sieben at first instance, supra. note 28, or Lightman J. in the Banier case, supra. note 43. The statutory insistence upon arbitrary caregorisation of purpose is therefore highly restrictive, and its potential impact ought not to be underestimated. Because of the narrow application of the defence, there will always be a residue of cases where publication is both 'fair' and, at Ieast in some sense, in the pubIic interest, yet does not fa11 within the statutory phrct~eology~~.Furthemore, there will be cases where, in the absence of complere acknowledgement, a finding of infringement must follow notwithstanding an absence of harrn or the actual awareness of readers as to the identity of a work and its author';. It should also be recalled in this context that well-known cases will have led in turn to "less well-known settlements, retreats fiom publication and other
'chilling effe~ts"'~~:journalists and others may be unable to absorb the costs of publishing, and so will Iikely back down or 'hush up' unless certain of their ability to prove the defence in court, or willing to take a risky and expensive stand.
It is cIear, then, that the need to overcome the first hurdle established by the fair dealing provisions can have the consequence of preventing discussion and analysis of the second hurdle; a judge cm thus avoid a11 discussion of 'fairness' as he or she understands it in the circumstances of the case. While being unhelpful in jurisprudential terms, the more worrying result seems to be the failure to acknowledge the 'impression' upon which the
76 Graeme Johnston made this observation in Ft-eedorn oftize Media, supra. note 35, at 8. 77 For a critique of this and other questionable limitations upon the apphcability of the fair dealing provisions. see Justice Laddie, Copyright: Over-Strerrgrli. Over-Regulared. Over-Rared, srrpra. note 68-In regard to the acknowledgement requirernent, see speci>call_i; id. at 258: "The requirement for sufficient acknowledgernent applies if the criticism or review is in a newspaper, but not if ic Ic in a film, broadcast or cable programme. But if it was not thought necessary for them, why make it a requirernent for any other forn~of criticism or review?" See also. Laddie J's judgernent in Pro Sieben, srrpra. note 38, at 48: "[Iln many cases it wiIl not make a hap'onh's difference ~vlietherthe author is identified or not. He rnay be dead or niay have assigned his copyright 100 years ago to sorneone else or he rnay be so well known that ideiitifying him is redundant. Absent that identification the relevant fair dealing defences do not lie." 7s Graeme Johnston, Freedom of rhe Media, supra. note 35, at 7. judgement is, ~ndoubtedly,largely based. Thus, the very notions of faimess that have, in reality, dictated the judge's response to the first branch of inquiry, remain ~nspoken~~.
One need not be a Legal Reatist to express some concem that the true motivations, biases, prejudices or politics that inform the judgements are thereby left unrevealed.
Moreover. these notions of what 'fairness' niight mean in a particular case are likely not developed through consideration of copyright broader social objectives. Where the purpose of the use dos not fit within one of the narrowly defined categorïes of sections
29 or 30, there is no need to discuss or analyse the public policy functions of copyright, or to evaluate the use in question in the light of the instrumental aims of the copyright system. This is where those common mischaracterizations of the nature of copyright - concepts of natural rights, property entitlements, and author-based reasoning in generaI - are allowed to implicitly guide the analysis, steering the courts away from public purpose and toward individualistic rights-based reasoning. Misguided assumptions and unconscious adherence to the mistaken philosophies of copyright tend to favour the author (and so the plaintifi), making it al1 the more likely that the proprietary right will triumph over the fair dealing claim. There can be little doubt that such assumptions are already at work when court makes a determination about the purposes for the infringing use and the applicability of the fair dealing provisions.
IV. Conclusions: Fair Oealing in the U.K.
79 For example, it is notable that nvo of the cases in which fair dealing has been denied, Banier and Associared Nervspapers, have involved use by tabIoid papers of sensationalist materials of popular interest and likely to attract readership. 1s the real object of the court's disapproval the tactics and antics of tabloid joumalism? In other words, is it in fact the manipulation and exploitation of events and people in the public arena by the tabloid media that the judge finds to be unfair? Are the judgernents based upon the courts' refusa1 to identiQ a public interest elernent in tabloid joumalism? A. Fair Dealino and Nature of Copvright
Tt seems to me that the problems associated with fair dealing in UK copyright Iaw are
more deep-rooted than a simple inadequacy in the legislative structure. It is my opinion
that this statutory formulation both illustrates and perpetuates an inherent
rnisconstruction of copyright Law. The limitations and arbitrariness manifested in the fair
dealing provisions are indicative of a failure to acknowledge the dochine of fair dealing
as an integral component of copyright. ïhere is no general fair dealing, no general
discretion, because there is no recognition of the fündamentality of protecting works from
the pervasive impact of copyright law. Copyright protection in the British system is strong, wide and inclusive; fair dealing is thus perceived as a marginal constnict, an exception. an afier-thought.
The significance anached to fair dealing is directly and intractably related to the
importance that we accord to the righrs conferred under the copyright system, and to Our understanding of what that system represents. A pervasive (mis)understanding can be clearly gauged through the general responses that show themselves whenever a case is decided in favour of the defendant under the fair dealing defence. Consider, for example, the statement made by filmmaker David Putnarn upon the decision of the Court of Appeal in the Clochork Orange case:
"1 think the ruling is tragic ... It could become a thieves' ~harter."~'
do In The I~zdepetzdentfor Saturday, 23 October 1993 rrr 3; quoted by David Bradshaw in +A Thieves' Charter ', szipra, note 39, at 6. This quote seems to encapsulate the view of'many copyright supporters that fair dealing
is simply "encouraging the profligate and damaging free use of [copyright owners']
intellectual estate by those who cannot be made to pay for the privilege?' In other
words, fair dealing is regarded simply as a statutory mechanism that does no more than
legitimise 'fair stealing'. Jeremy Phillips have even suggested that, 'fair' being a
misnomer, the term should be replaced by 'relatively unfair? Wbere copyright is
considered to be an author's right to the fruirs of his labour, it follows that fair deaIing is
viewed as a means by which to justie the violation of that right. Such an understanding
clearly influences the rhetoric that sustains copyright as a whole, and that favours the
protection of the author's interests against the user with no nght to use.
As such, wamings and fears and paranoïa abound: findings of fair dealing, such as that in
the BSB case, open the "legal floodgates for copyright infringer~"~~and threaten to result
in "anarchy" in the broadcasting industry? Any limitation upon the scope of copyright is
portrayed as support for 'pirates'; it is "depicred as support for the parasites of indu~try"~~.
Interestingly, the claims - or les cris de coeur, to adopt Scott J.'s terminologys6 - of
copyright owners in this respect are vaguely reminiscent of those made by the publishing
monopolies in eighteenth century England. Detectable in these cries is the fear of
8 1 Jeremy Phillips, Fair Sreaiitzg, supra. note 72. s2 Id. at 57. 93 Per Claire Dresser, in the BBC's in-house newspaper Ariel for 26 October 1993 at 2, basing her statement on the predictions in some quarters of the in-iplications of the decision. Quoted by Bradshaw, A Thieves ' Charier. supra. note 35, at 10. SJ The prediction made by the managing director of the BBC in his evidence in the BSB case, sripra. note 1 5. at 835. Paraphrased by Reville, Chailengin dre Broadcast Monopoly. supra. note 5 1, at 18. s 5 Justice Laddie, Copyright, szrpra. note 68, at 259, '"n the BSB case, supra., note 15, at 845. economic loss: but always clearly audibie is the evocation of notions of private propeq
and theft.
The Anglo-American copyright system is, however, one built upon pragmatic
utilitarianism. designed to perform an instrumental role in achieving public policy
objectives. -4s Graeme Johnston has recognised, this fact should make it "intellectually
easier to justify derogation fiom [copyright] on (competing) utilitarian gro~nds"~'.While
this is a valid observation, however, it does not seem to go far enough. Having accepted
this as an accurate description of the nature of copyright, it should fol1ow that exceptions
are not to be regarded as 'derogations' at all. nor are the utilitarian grounds be perceived
as 'competing'. As such, if we recognise the need for fair dealing in copyright law in
order to etzable copyright law to achieve its objectives, such imaginary 'cornpetition' is
necessarily rendered nonsense. Copyright Law must be equipped with a broad and
comprehensive fair dealing defence befoi-e it will be capable of maximising the
satisfaction of the goal that was the copyright system's target. If there is a utilitarian
basis for copyright then this basis must incorporate, as opposed to compete against, the
fair deaiing doctrine.
The social policy arguments for copyright, then, are the same social policy arguments
that support a liberal and expansive fair dealing exception. The problem arises, however,
because these social policy arguments for copyright appear to have been largely displaced by arguments of individual entitlement. The obvious consequence is that the
Y7 Johnston. Freedorn of rhe Media, supra. note 34, at 10. arguments supporting copyright, and those siipporting fair dealing. have been thrown into
apparent conflict. It is no surprise that, in the case of such (imaginary) conflict, there is a
distinct reluctance to curtail individual entitlements on the basis of social policy.
B. The Problem with Fair DeaIino in the U.K.
As such, 1 retum to my earlier statement: the common dismist of fair dealing is bom of a
mistaken conceptualisation of copyright. The concept of copyright as a property
(monopoly) right, as persona1 reward, or e\.en as the sole and absolute route towards a
utilitarian objective, inevitably breeds a reluctance to curtail the tights of copyright owners. As the above discussion demonstrates, this reluctance has found expression in the fair dealing provisions of the 1988 Act. It seems that Justice Laddie accurately described the British copyright legislation when he wrote:
"Rigidity is the rule. It is as if every tiny exception to the grasp of copyright monopoly has had to be fought hard for, prized out of the unwilling hand of the legislature and, once conceded, defined precisely and confined within high and immutable walls ... Based on this approach, we now have an Act in which there are 19 sections of numbingly detailed exceptions to copyright infnngement ... [Tlhe drafting of the Iegislation bears al1 the hallmarks of a complacent certainty that wider copyright protection is morally and economically justified. But is it?""
The conclusion that must be drawn is that there exists a need to re-examine the underlying assumptions upon which the copyright rnonopoly is based. The inadequacies of the fair dealing doctrine in UK copyright law are, it is submitted, the direct and predictable result of a failure ro appreciate the role, and the normative and instrumental
Ss Justice Laddie, Copyright, supra. note 68. at 259.
68 goals, of any copyright regime. The "awesome width of curent copyright legislation"'' is Y the inevitable consequence of this failure. CHAPTER 3: FAIR DEALING 1s CANADIAN COPYRIGHT LAW
1. Introduction: The Problem with Canadian Law
In many respects Canadian copyright Iegislation closely resembles that of its British counterpart, and is typically recognised as being a direct descendant therefrom'. As we
.shall see, the British and Canadian copyright regimes are generally united in their contrast to Amencan copyright law and, in particular. to the American equivalent of fair deaIing. As such, the Canadian Iaw on fair dealing wi1l be subjected to much the same fornl and substance of cnticism as that invoked above against the current state of British law: as in the U.K., the Canadian approach to fair dealing has been one of single-minded reliance upon specific and limited des, together with a distinct unwillingness to undertake reasoned consideration of the purpose and context of the fair dealing doctrine within the larger poIicy aims of copyright law. Perhaps to an even greater degree than has been the case in the United Kingdom, the result has been a wide refusa1 to entertain the defence of fair dealing in copyright infringement proceedings. To the extent that the
- - -- ' See for esaniple the recent judgement of Gibson J. in CCH Canadiarz Lrd. v La\.+.Socien of Upper Ca~iada.2 C.P.R. (4th) 139 ( 1999), at 188: "[CJopyright law. a 'creature of statute'. has been known to the Iaw of England at least since the days of Queen Anne and many of the principles underlying even the current United Kingdom statute remain applicable in Canada. Thus, United Kingdom case law and that of other nations whose copyright laws are derived from the United Kingdom tradition can generally be relied on with impunis.. By contrast, copyright legislation of the United States has developed through a different tradition and therefore American case law must be carefully scrutinized." See also the decision of Estey J. in Cornpo v. Blzte Cresr, 45 C.P.R. (2d) 1 (1979), at 8: "The United States Copyright Act, both in its present and earlier forms, has, of course, many similarities to the Canadian Act, as well as to the pre- esisting Imperia1 Copyright Act. However, United States Court decisions, even where the factuaI situations are similar, must be scrutinized very carefully because of some fundamental differences in copyright concepts which have been adopted in the Iegislation of that country." 1 will argue in Chapter 4, however, that the Canadian courts are wrong to draw my sort of critical distinction between the policies or philosophies underlying the British and Canadian copyright systems and those which underlie the U.S. system. Such a distinction is usually founded upon a mischaracterization of the policies underlying the British and Canadian conception of the purpose of copyright Iaw. What should taken fiorn these statements for now, however, is simply that it is broadly accepted that the British and Canadian copyright systems at least share a comon background and so a common purpose. courts have considered the defence, the result has been an ad hoc acceptance or refùsal of
fair dealing in a vacuum of judicial argumentation and legal reasoning.
In the discussion of Canadian law that follo\vs, then. 1 will argue that the current state of the law conceming fair dealing in Canada is inadequate to fulfil the functions required of
it by a coherent copyright system. At present, legislative and judicial treatment of fair dealing in Canada has largely circumscribed the intent contained in the fair dealing doctrine, and has, as a result. obviated necessary consideration of the purpose of copyright as a whole.
II. Canadian Legislation on Fair Dealino,
A. The Statutorv Historv of Fair Dealing in Canada
The British Copyright Act of 1812 was held to apply to Canada and al1 British
Dominions in the decision of the Privy Council in Rordedge v LOW'. The Constitution
Act of 1867-' conferred exclusive jurisdiction upon the Dominion parliament in the area of copyright legislation, with the first Canadian Copyright Act being enacted in 1868'.
Further copyright legislation was enacted by the Canadian legislature in 1875' and 1906~, although the Imperia1 Act of 1842 continued to entitle works to copyright in canada7.
However, the Imperia1 Act of 1911, in which fair dealing made its first statutory appearance in British copyright law, did not extend to self-governing Dominions unless
' ( 1868) L.R. 3 H.L. 100- S 9 1, ss. 23. ' 3 1 Vic. c- 54. 38 Vic. c. 88. 6 R.S.C. 1906, c- 70. espressly declared to be in force by the legislature of that Dominion. In contrast to
Australia, South Afica and Newfoundland, Canada enacted its own copyright legislation in 1921. which came into force in 1924'. The 1921 Act was, however, substantially copied from the 19 11 Act notwithstanding certain variations and additions. Section
16(l)(i) of the 1921 Act provided, in the sarne terms as section Z(l)(i) of the British 19 1 1
Copyright Act, that any fair dealing for the purposes of private study, research, criticism, review, or newspaper surnrnary would not constitute an infringement of copyright. It is clear, then. that the fair dealing doctrine in Canada emerged in the same form and context as the British concept of fair dealing, and as such can be understood to bear a close relationship thereto.
Under the Copyright Act 1970'. the first case of Lawfùl use stipulated by statute was:
(a) Any fair dealing with any work for the purposes of private study, research, cnticism, review or newspaper summary. 10
It \vas upon this unaltered formulation of the fair dealing provision that the 1984 White
Paper, From Gutenberg To Telidon", based its criticisms and recomrnendations for reform". Having noted that the lack of statutory definition available in the fair dealing
7 For a comprehensive examination of the statutory history of copyright in Canada. see Harold G. Fox. Tlie Cutiadia~lLaw of Copyright and Itidtcstrial Designs (2nd ed.), Chapter 1, at 26 er seq. The cana dia,^ Copyright Act / 9t 1, c. 24. " 11-12 Geo. V. c. 23. 1O Section I7(2). Il Froni Guretiberg to Telido~z:A White Paper on Copyright, Ottawa, Consumer & Corporate Affairs Canada. 1984. " Several other examinations of Canadian copyright Iriw touching upon the subject of fair dealing had already been conducted in the years benveen 1970 and 1984: see Report on Itrteflectrral and It~dustriaf Propern: Economic Council of Canada. 197 1. at 133. 138-39. 140-48, 160-67; A.A. Keyes & C. Brunet. Copyt-ighritt Catiada: Proposais for a Rei*isiotl of the Law, Consumer & Corporate Affairs Canada, 1977, at 144-76: Barry Torno, Fair Dealing: The Need for Conceptual Clariry on the Road to Copyright Revision, Corporate Revision Studies, Consumer & Corporate Affairs Canada, 198 1 ; D. Magnusson & Victor Naban, Exemptions Under the Canadia11 Copyright Act, Copyright Revision Snidies, Consumer & provisions had led to confusion and misunderstanding of the fair dealing doctrine, the
White Paper proposed that a new Act should:
"provide both a definition of fair dealing ("to be termed 'fair use') and a pnoritized list of factors to be considered in deterrnining whether a particuIar use of a work is a fair use'3... 'Fair use' will be defined as a use that does not conflict with the normal exploitation of the work or subject matter and does not reasonably prejudice the legitirnate interests of the copyright owner.""
It is notable that this recommendation bears a substantial similarity to the proposa1 put forward by the Whitford Committee in the United ~in~dom".Also important is the fact that both reform proposals support a move toward the adoption of a broadly defined fair use doctrine similar to that found in American law, the implications of which will be discussed in the proceeding chapter. Needless to Say, however, the reports also share the characteristic of rejectiont6. In the UK, the Whitford recommendations were swiftly set aside in lieu of a narrowly drawn fair dealing exception requiring the satisfaction of a limited purposive test. In Canada the Sub-Comntittee oit the Revisiotr of ~o~~r-i~ht'~,in the year following the release of the White Paper, recommended against revising
Corporate Affairs Canada, !954. See also, House of Commons, Standing Committee on Communication and Culture, Report of the Sub-Cornmittee on the Revision of Copyright, A Charrer of Rrgltrsfor Crearors, 1985. 13 The list of factors was as follows: first, the impact of the use on the copyright owner's economic reward (such that if copying was so substantial as to rnatenally reduce the demand for the original the copyright owner's interests wouId have been harmed); secondly. the type of work invoIved and its purpose (as the nature of the creation colours the owner's expectation about how it will be used); and thirdIy, the amount and estent of the taking. From Gutenberg to Telidon, supra. note 1 1. at 40. 1J Id. at 39-40 (footnote added), This approach had earlier been recomrnended by Barry Torno in his seminal report on fair dealing in Canada, Fair Dealitzg: The Need For Conceptual Clarig, supra, note 12. '' See supra. Chapter 2, section III. B. 16 This could perhaps be regarded as testament to the strength of copyright owners and pro-copyright lobbyists at the point at which they become involved in the legislative process. t 7 Sub-Committee of the Hotîse of Cornmotzs Srandittg Cotnmittee on Conznzurticario~land Ctdture. The Report of the Sub-Cornmittee, released in 1985, was entitled A Charter of Rights for Crealors, supra. note 12. For the relevant text on fair deaIing see pp 63-66 of the report, or see Howell, Vincent & Manson, Ittrellecrual Propei-y Law: Cases ard Marerials at 36 1-3. Canadian copyright law in this context, finding that the 'present formulation of the
concept should be retained.
With respect, the reasoning behind the recornmendation appears both contradictory and
unconvincing. The Sub-Cornmittee attributed the purported "success of the existing fair
dealing scheme" to the "sequential scheme" of the provisions which, similar to the British
scheme, required first that there be infringement, secondly. that the dealing be for one of
five enumerated purposes, and finally, that the dealing be 'fair'. As evidence of the
success of this formulation the Cornmittee cited the paucity of litigation in Canada on the
issue, in contrast with substantial Iitigation surrounding the defence in the United States
and purportedly arising due to the "uncertainty surrounding the PSI concept." Exactly
why this fact was construed as an indication of success is unciear; if the lack of relevant
litigation in Canada is, as 1 would suggest, the likely result of a resticted fair dealing
concept that weighs against the rïghts of the user, then the fair dealing provisions must be
anything but successful. Fair deaIing is, after aII, a concept intended to ameliorate the
position of users of copyrighted work and society as a whole. If the fair dealing
provisions are escaping judicial consideration, then this is because the defence is not
being frequently raised. This, in turn, suggests the perceived impotence of the defence amongst users and society. The overview of Canadian case law that follows can only suggest that, currently, this perception is well grounded.
In the course of assembling its recomrnendations for fair dealing reform, the Sub-
Cornmittee discussed the possible inclusion of a statutory list specieing the factors that must be considered in a fair dealing inquiry. In my opinion, this discussion was littered
with contradictions that? in themselves, betray a deep-rooted confusion surrounding the
function of fair deaIing. The list, similar to that which appears in the US Law, was a
suggested reform in the 1984 White paperl*. It was dismissed by the Sub-Committee on
the basis that:
"[tlo be effective, any fair dealing provision must be flexible. It must be left to the discretion of the courts to mould and shape according to technological development and existing practices. Fair dealing must be used in accordance with its name, that is, as a method of determining what is fair and what is not fair on the facts of a particuIar case,"
In respect of an exhaustive Iist of enumerated purposes, however, the Sub-Cornmittee opined that:
"[rletaining the enumerated purposes is essential to the fair dealing scherne... Whatever certainty is possible with respect to fair dealing is derived from the enurneration of these purposes. If the activity in question is not for one of the purposes then it is not fair dealing. Nothing can be more certain than that."
The question thus rernains: how could the Sub-Cornmittee have believed that a list of factors would effect too great a limitation upon the dexibility of fair dealing, while, at the same time, embracing the limitation of purposes as an essential means to curtail such flexibility? The factors for consideration are intended to assist the court in making a determination of fairness (thus enabling the application of the provision to be "true to its name"); the exhaustive list of purposes, however, operates to preclude consideration of this fairness and to restrict arbitrarily the application of the defence to alternative dealings. As such, 'essential flexibility' is achieved to a much greater degree in a legislative formulation that adopts the first, and not the second, list. With the absolute
-- - 1s See note 1 1, supra. certains. of the enumerated purposes, flesibility in the determination of 'fairness'
becomes entirely irrelevant wherever a use falls outside the listed categories. The need
for flexibility, to which the report paid lip service, was seemingly lost amidst fears of an
increase in litigation and a widely applicable defence to copyright infringement.
There clearly exists, in Canada, a distinct anxiousness to avoid reform in this area of lad9. One again, this anxiousness is the consequence of a rights-based, author-oriented understanding of copyright law that fails to acknowledge the importance of exceptions within the copyright scheme,
B. The Current Fair Dealinc Provisions in Canada
The fair dealing provisions in Canadian statutory law are currently found in sections 29,
29.1 and 29.2 of the Copyright ~ct". Under section 29, "fair dealing for the purpose of research or private study does not infnnge copyright"". Fair dealing "for the purpose of
1'J A tùrther example is the withdrawal of Bill C-3 16 in 1990, which had represented an attempt to move towards an Arnerican 'fair use' concept in Canadian copyright law. This is raised in Howell, Vincent & Manson, supra. note 17, at 363, which cites also H.G. Richards, Concept of ltfringenrent in file Copyright Act, in G.F. Henderson (ed.), Copyright arld Corlfidet,itialInformafion Law of Canada at 2 15-2 18. 10 RepIaced by section I8(1) of the Cop-vright Anrendt~ientAcr 1997, SC 1997, c. 24. (section 27 prior to SC 1997). Sections 18 and 19 of the 1997 Act broadeiied the range and detail of specific exceptions in the Copyright Act, in particular wi th regard to educationa! institutions, libraries, rnuseurns and archives. The general 'fair dealing' defence remained substantially iinchanged. See Howell, Vincent & Manson, srtpra. note 15, at 35 2. OveralI, the 1997 arnendments did little to fundarnentally alter the role and the content of exceptions in copyright. See Marcel Dubé, ~.odrjicatiotzsarLr exceprions ou Ii~nitationsqui erisraienr avant la réfortne de la Loi sur Ie droit d'auteur de 1997: cosruérique législarive on nouveau parri pris enJaveur des ntilisa~eurs?,1 l(1) Les Cahiers de Propriété Intellectuelle 157 (1998/99) at 172-173: "On ne peut donc déceler, dans ce volet de la réforme législative de 1997, aucune velléité du législateur canadien de 'changer la donne7 et d'améliorer le son des utilisateurs d'œuvres protégées par le droit d'auteur au détriment de celui des titulaires de droits-" For a general discussioii of the 1997 arnendments, see David Vaver, The Cop-vrighr Amendments of 1997: An Overvierv, 12(1) I.P.J. 53 ( 1997). " It should be noted that, in conuast with section 29.1, this section does not require indication of the author from whom the work is taken or the source of the bon-owing, This perhaps suggests that the use contemplated is not one in which the copied work is cornmunicated to the public: see Normand Tamaro, 2000 Atznotated Cop~trigiztAct, at 404. Note also that the wording of this provision is understood to mean that research need not be 'private' in order to benefit î?om section 29 (cf- Recornmendation 84. in A Cl~urrerof Rigitts for Crearors, supra. note 12, criticism and review" under section 29.1, and "for the purpose of "news reporting" under section 29.2, do not infringe copyright if the following are rnentioned:
"(a) the source; and (b) if given in the source, the name of the (i) author, in the case of a work (ii) performer, in the case of a performer's performance (iii) maker, in the case of a sound recording, or (iv) broadcaster, in the case oi'a communication signal.""
Clearly, certain distinctions can be draw between the fair dealing provisions as they currently exist in British and Canadian copyright legislation3. However, with the regard to form and, to a great degree, substance, the approaches taken by the two systems have much in cornrnon. Both systems, as they presently stand, list specific categories of exceptions, which are, it is important to note. entirely exhaustive: no additional purposes can be recognised as falling within the scope (or the spirit) of the exception. In both cases, the result of this "sequential scheme" of inquiry - what 1 have described in the preceding section as a "bifurcated approach" - is a fair dealing defence that is:
"statutonly restrictive and not easily capable of a remedial, flexible, or evolutionary interpretation.""
------77 Prior to arnendment by section 18 of the Act to Amcnd the Copyright Act, S.C. 1997, c.24, sections 29.1 and 29.3 (fomerly sections 27(1) and (2)) did not require that the source and the author of the work reproduced be rnentioned in order to benefit from the kir dealing defence. The requirernent to provide the source was first added to the Copyright Act by An Act ro Inrplement the North American Free Trade Agreentem, S.C. 1993, c. 44, section 64(1), which substihited the following provision for the previous section 27(2)(a): (a) any fair deahg with any work for the purposes of pnvate study or research; (a. 1) any fair dealing with any work for the purposes of criticisin, review or newspaper summary, if (i) the source, and (ii) the author's name, if given in the source, are mentioned. 23 For example. section 29.1 of the Canadian Act contains no express reference to typographical arrangement, nor does it specificaIly provide for instances where copying is carried out by someone other that the researcher or student (cf. section 29(1)-(3) of the UK Copyrighr. Designs and Patents Act 1988); the term "news reporting", in section 29.2, can be contrasted with the apparently more Iimited UK equivalent of "reporting current events" (section 30(2) of the 1988 Act); section 29.2 of the Canadian Copyright Act does not include an explicit exception with respect to photographs (cf: section 30(2) of the 1988 .Act), and so forth. H. Knopf, Linrifs on rhe Nature and Scope of Copyright, in G.F. Henderson, Copyrigltr and Corfidenrial Irzforrnaiio~z, supra. note 1 9, at 357. III, Canadian Case Law on Fair Dealing
While the Canadian fair dealing provisions adopt a bifürcated approach to fair dealing
inquines similar to that of the British copyright Act, this 'double hurdle' seems to have caused fewer obtrusions into judicial consideration of the defence than has been the case in the UK. Of course, it is important to remember that this statutory approach is no less capable of causing the same difficdties in Canadian copyright actions as those outlined above in reference to the British fair dealing law. The Canadian judges do not, however, appear to have fallen into the same quagmire of categorisation as their British counter- parts and have been less likely, particularly in the earlier cases, to dismiss the defence on the basis of a solely purposive analysis. This is not to Say, however, that the Canadian courts have displayed a greater willingness to entertain the defence. Indeed, the opposite is true: the tendency has, in fact, been to disniiss the defence "in summary fashion"".
In the following exploration of Canadian case law it will become clear that the courts of
Canada have been guided by an unspoken reluctance to become embroiled in any thorough analysis of the role or fünction of fair dealing. This observation cannot be separated from the wider reluctance manifested within Canadian jurisprudence to senously consider the underlying philosophy of copyright as a whole? The obviation of justificatory, foundational argument is, once again, representarive of an over-reliance
25 See David Fewer, Consrirzcrionalizing Copyright: Freedom of Expression atzd tire Litnits of Copyright in Canada, 55(2) U of T Fac. of Law Rev. 175 (1 997), at 107. '"~d.at 191-193. upon the specific and restrictive rules within the Copyright Act, and a neglect of the broader values or principles evident in the fùnctional goals that copyright embodies. The development of the pivotal doctrine of fair dealing, which constitutes the principal defence available in Canadian copyright actions, has suffered greatly at the hands of this approach. As Fewer notes:
"[Tlhe failure of Canadian courts to articulate a reasoned application of the fair dealing defence, combined with the barren state of pertinent jurisprudence and lack of deliberate legislative guidance, has impoverished the defence itself.""
A. All's Not Fair
Following its enactment in 1924, the fair dealing defence did not anse with any significance in the Canadian courts until almost twenty years later, in 1943. The first major decision on the subject, Zanmcois v ouv ville'^, continues to represent the leading case despite the fact that the defence was only one of three major issues addressed by the
Even more disappointing is the su-iftness with which the court dismissed the defence, and the dubious authority that seems to have formed the basis of this decision30.
The case concerned the reproduction in a newspaper of the entire text of an article combined with a critical comment upon it. Angers J. held that the fair dealing exception could not Save this use from a finding of infringement:
-
'7 [d. at 207. " 2 C.P.R. 270 (1933). '"This point is noted by Barry Torno in Fair Dealing: The Needfor Conceplual Ciarity, supra. note 12, at 1. 30 The court anributed much weight to a French copyright text written by Huard and Mack (1909) notwithstanding the significant contrasts that exist between French and Canadian or AnçIo-Amencan copyright regimes; see id. 1-2- Importantly, the former system traditionally places a substantially greater ernphasis upon the rights of the author, and is therefore more likely to restrict the application of exceptions "Xt is universally recognised that the reproduction by 'a newspaper, with a view to controversy or debate, of articles which have appeared in another paper is legal ... The right to quote is permitted by the Act; to refuse this would in effect suppress the nght of literary criticisrn. However, a cntic cannot, without being guilty of infringement, reproduce in full, without the author's permission. the work which he criti~izes."~'
In many ways, this ruling set the scene against which Canadian jurisprudence on fair
dealing would proceed: without expending any effort in the examination of the rationale
behind the fair dealing defence, and without situating the judgement within the broader
expanse of copyright policy, the court brushed fair dealing aside. We are thereby lefi to
speculate as to the reasons for the decision, and to doubt whether they were the outcorne
of sufficient consideration by the court.
In the 1984 case of The Queen v James ~orimer~',the defendant had distributed for profit
an abridgement of a government document entitled Canada i Oil Monopo&. Mahoney J.
clearly felt that his rejection of the fair dealing defence required Little in the way of
evaluation or explanation:
"The respondent says its abridgement was a fair dealing for the purposes of review. Afier considering the authorities, the learned trial judge concluded that such fair dealing '...requires as a minimum some dealing with the work other than simply condensing it into an abridged version and reproducing it under the author's name.' ... The trial judge was right."33
Two aspects of this ruling are disturbing. First is the disappointing refusal by the three- judge panel to undertake any analysis of the defence or to stipulate any criteria for future
thereto. Reliance upon the French authority appears to have ben based solely upon the unsubstantiated belief that "literary criticisrn in England is not as extensive as in France"; per Angers J. at 30 1. 3 I ld- at 302- '' 77 C.P.R. (2d) 262 (1984). decisions concerning fair dealing- Second is the potentially harmful failure to consider the consequences of a finding of infkingement in the circumstances before the court. As
Fewer notes3', copyright legitimises constraints upon the dissemination of information and access thereto, As such, copyright can be used, rather than as a means of obtaining suirable remuneration, as a tool to control the unsanctioned use of the work and, indeed, the information or ideas contained within it. Fewer explains the irnpIications of this fact:
"In these circumstances. the Copyright Act may function as a form of private censorship - or, where Crown Copyright is asserted, public censor~hi~."~'
Where a copyright owner does not wish to commercialise or publicise its work, the Iaw of copyright becomes a "blunt weapon of cens~rshi~"'~.Of course, having examined the historical background of copyright legislation, this fact ought not to corne as a surprise.
What is surprising, perhaps, is the extent to which this censonal function is tolerated or overlooked today. Thus, in the Lorimer ruling, the Crown succeeded in enjoining the publication of a federal report while admitting that little economic injury wouId resuIt from the abridgement. The point was simply that the publisher had failed to ask for permission that may or rnay not have been granted3'. On this basis. the defendant was forced to relinquish its remaining stock and profits. Notwithstanding the apparent significance of the parties to the case - the fact that the case involved the assertion of
Crown copyright in a government document over a private individual - the court seemed
'"d- at 269. 3J Fewer, Cortsiirurionalizing Copyriglrr. supra. note 25, at 197-199. 35 ici. at 197. David Vaver, Some Agnoslic Observariorts orl InreUectcral Propery, 6 I.P.J. 125 (199 1 ), at 136. See 136- 139 for an interesting discussion of this effect and its encroachment upon democratic ideals. 37 Under the present guidelines for obraining copyright permission on Crown documents, permission rnay be denied on several grounds. Included in these grounds is the beIief that the use of the copyrighted material would be "inappropriate ... for legal or other specifiabIe reasons," [Treasury Board of Canada content to dismiss al1 defences rai~ed)~without ernbarking upon a discussion of the role
that these defences might play in this or sirnilar circurn~tances~~.It seems fair to say that
the ease with which this subject was dismissed epitomises the nonchalance with which
the courts have geeted the involvement of Fundamental democratic ideals and social
values within copyright actions.40
On the whole, Canadian courts have not been receptive to copyright defences and fair
dealing in particular. In Tom Hopkins htr. v Wall di Redeliop Realp ~td.''the defence of
fair dealing was refused in an action concerning the reproduction of a sales training video
tape for use within a real estate chain. The court held that fair dealing could not extend to
making ten copies for the distribution and possible repeated use of the material in branch
offices. The court expressed its opinion that:
"Fair dealing for any of the purposes mentioned in S. L 7(2)(a) might permit partial copies for limited viewings or possibly entire copies for viewing on the basis of the time-shifting argument accepted by the rnajority of the Supreme Court of The United States ... However, as interesting as the tirne-shifting concept rnay be, this
Circular No. 1986-25,Crorvn Cop-vrigizr, I 1 June 1986. Quoted by Vaver id., at 136.1 That the reasons must be 'specifiable' hardly denotes a strict standard justiQing refiisal to gant copyright permission. 3s The defence raised arguments based on fair dealing. public interest and freedom of expression under the Canadian Ch~zrterof Righrs and Freedorns. YJ in this case, the documents published were already publicly available. However, this factor does not appear to have influenced the court's judgement regarding fair dealing; nor the court suggest that this factor ought to weigh towards a finding of fair dealing where documents would not othenvise be available. Indeed. non-publication will generally weigh againsr 3 finding of fair dealing, Comparable criticisms can be made with regard to cases arising in other Commonwealth jurisdictions. For example, in the UK the controversiai book Spycarclzer, written by former secret agent Peter Wright. was the subject of copyright actions by the British government in the UK, IreIand, Australia, Hong Kong and New Zealand. Although the case was not pursued following the international publication of the book, the British judges found that Wright wouid be unable to assert any copyright in the work, and even opined that the Crown miglit be the meowner of the copyright (A-G v Guardiatz Nervspapers Itd (No. I), [ 19881 3 W.L.R. 776). Also, in the Australian case of Contntomvealth v John Fairfar & Sotrs Ltd., 55 A.L.J.R. 45 (H-C-),Mason J. allowed an infringement action in respect of a book publishing federal govemment documents concerning the Australian govemment foreign policy towards Eastern Timor. As Vaver summanses the decision (Agnosric Observations, supra. note 33, at 137): "The Crown was entitled to protect its literary creativity from being admired by the world." '" 1 C.P.R. (3d) 348 (1 984) (B.C.S.C.), varied 6 C.P.R. (3d) 375 (1985). does not seem to be a realistic exception to the clear language contained in Our legislation.'742
This judgement is illustrative of the narrow scope within which the boundaries of the fair
dealing provisions have been drawn, and the general refusal to undertake reasoned
analysis of a wider purpose or content for fair deahg. This is equally tme of the judgement given by Joyal J. in Breen v Hancock Home Pub[islw-s ~rd.'",which
concerned the use of materia1 from the plaintiff s book by the defendant in his doctoral
thesis:
"Although the proportion of cribbing from the plaintiff s work to the total of the author's work was quantitatively small, the qualitative aspect indicated to me that it was more than -fair dealing' and that it constituted an appropriation by the author of the ski11 and time and talent of the plaintiff. As a result, the plaintiff was entitled to an inj~nction."~
Other decisions on the subject of fair dealing have been equally unhelphl in their
analysis of fair dealing (or, more accurately, in the lack thereof). Even in those cases that
have tentarively accepted the possibility of fair dealing, fùnctional analysis has been
notable only by its absence. In New Era hddications Int. ApS v Key-Porter Book; ~td..",
which involved the use of unpublished works by the late Ron Hubbard (founder of the
Church of Scientology) in a book entitled Bare-Faced Messiah, an interlocutory
injunction was refused on the basis that fair dealing was one of several ''triable iss~es"'~.
'"er Trainor J., 1 C.P.R. (3d) 248 (1984), at 352-353. '3 6 C.P.R. (3d) 433 (1 985) (Fed. T.D.). Id. at 336. "'1s C.P.R. (3d) 562 (1987) (Fed. T.D.) '"d. at 567-8- hro further discussion of the defence ensued. and so no mention was made of the role that fair dealing might play in cases of this sort.4i
The facts of the New Et-a case underscore the way in which copyright can fùnction as a disguise for private censonhip, a tool for 'hushing up' critics. It is perhaps in situations such as this that the concept of fair dealins has its greatest significance, becoming the primary means of upholding the nghts of users and the public in general, to access to copyrighted works and the information contained therein. For this reason, it is particularly unfortunate that the court once again chose silence to be the best policy."8
B. 'Unfaimess' in Fair Dealino, - Until recently, then, the Canadian courts had provided so meagre an anaIysis of the fair dealing that it would hardly have been possible even to describe their approach to the defence. It seems that, for a long time, the fair dealing defence was not even given the opportunity to fall foui of the 'enumerated purpose hurdle'. Rather, the defence was
JÏ See also, R v Larrrier Oflce Marr I~zc., 58 C.P.R. (3d) 403 (1994). This case concerned the practices of a university copy shop where professors would leave thsir course materials so that students could obtain copies. The coun made the surprising move of requiring that the Crown disprove the defence of fair dealing before the criminal action under section 42 of the Copyright Act could succeed, holding that "the fair dealing eiement is ... an essential part of what does or does not constitute an infringing copy in a criminal prosecution", at 416. However, on the issue of whether the fair dealing defence in fact applied, the court simply found that "it is not necessary to decide this issue at this time, however interesting it miçht be, given the other bases upon which the defendant is found not guilty", at 416-7. Another unhelpful judgement can be found in the case of B. W*Inrerttarional hc. v Thorrlson Cartada Lrd., 68 C.P.R. (3d) 289, where Kiteley J. dismissed the possibiiity of a fair dealing defence on the apparent basis that the copied work was a result of a leak, saying simply: "1 faii to sce how The Globe could be successfÙ1 in that defence anyway", at 300. 4s The use of copyright to hinder biographical and historical works is a wonying phenornenon. Fewer draws Our attention to this case on the basis that it represents an occasion of private ctnsorship under the -ruist: of copyright litigation. He notes that: "[c]ourts, in permitting copyright to be used in this fashion, privilege the privacy rights of individuals over the public interest in the dissemination of knowledçe." Cot~s~iiztrionalkingCopyrighr, supra. note 25, at 197- 198. An important example of this practice in Canada is the 19 13 case of Lindse-v v Le Soertr, 27 0.L.R- 588 (H.C.),aff d (I 9 13) 29 O.L.R. 648 (A.D.): The heirs of William Mackenzie had commissioned a biography, granting access to private papers, but, upon finding disrnissed on what can only be assumed to have been an unspoken notion of (un)faimess.
As such, the Canadian courts' vision of fairness was not something that was achieved through an analysis of the nature of copyright, surmising what might be fair within the context of the general aims of the copyright scheme. Indeed, the judgements did not, in any way, expressly undertake to define or delimit the meaning of 'fairness' in the context of fair dealing. Rather, these decisions appear to have been informed by a basic unwillingness to accept that the defendant's use of copyrighted material could possibly be fair. And this seems to have turned simply on the basis that the defendant copied some one else's work.
In other words, al1 that can really be taken from these cases is that the courts understood copyright to have an innate fairness in and of itself, and consequently, that violations of copyright were understood, almost by definition, to be unfair. Fair dealing was therefore given little opportunity to develop because it was, apparently, regarded as being in contravention of the general operation of a fair copyright system. It is clear that, on this basis, there was no recognition of any need to analyse the effect of the copyright protection or the importance of fair dealing in relation to the policy underlying the system,
Since 1996, however, five major cases have arisen in which the courts have been required to consider senoudy the applicability of the fair dealing provisions. In these judgements, the approach taken by the Canadian courts' has increasingly corne to resemble that of
- - - that the biography gave a negative account of Mackenzie's legacy, the heirs brought an action against the their British counterparts- As such, the following discussion will be undertaken in much the same way as was the discussion of British fair dealing cases in Chapter 2: the cases will be considered in the context of the relevant purpose enurnerated in the fair dealing provisions. In this way, 1 hope to reveal the manner in which the present Canadian
legislation has iimited the appiicability of the fair deahg defence, and the way in which the Canadian courts have further restricted its scope through a consistently narrow construction of the statutory provisions in which it is contained.
C. 'Research or Private Study7
The defence based on research and private study has proven to be less expansive in application than its relatively broad terminoIogy might at first suggest. The courts have, whenever opportunity has arisen, narrowed the potential scope of the section 39 defence.
As one example of this, it is now widely accepted that section 29 does not permit someone who undertakes research or private study to publish excerpts frorn reproduced works together with the results of his or her research or shidy.
In Hager v ECVC Press ~td.'~,then, the defendants, who had incorporated six major passages from the plaintiff s biography of Shania Twain into their own book, were unable to successfiilly raise fair dealing for the purpose of research as a defence. The defendants had attempted to argue that every biography is by its nature a work of research. Reed J., however, found that the most significant factor in defining 'research7 as it appeared in the
Copyright Act was that there was no requirement to identiS the source. From this factor,
------. biographer for copyright infringement and won. Reed J. derived that "[tlhis indicates that the use contemplated by private study and research is not one in which the copied work is cornmunicated ta the public"'0.
Moreover, Canadian courts have followed the British position established in the case of
SiIliioe v McGraiv-Hill Book ~0.~'and now contained in the current UK copyright legislation, which requires that, in order to quali@ under the defence, the copies must be made by the individual party intending to undertake research or private study. In other words, a person cannot fairly deal with a copyrighted work orr behalf of others. Reed J. endorsed this approach in the mercase, citing both the LJK position and the Australian decision of De Garis v Neville J.essPidler Pîy L&' where the research defence was rejected on the basis that the relevant activity, for the purposes ofa fair dealing inquiry, is that of the copier, not its customersï3. In the Canadian case ofBortdreazt v LNZ'.', it was held, in line with these authorities, that a defendant university, which copied and sold casebooks to be distnbuted arnongst students, was not able to rely upon the 'private study or research' exception.
'"85 C.P.R. (3d) 289 (1998) (Fed. T.D,) 50 id. at 3 12. In attempted to define 'research' Reed J. also made reference tothe dictionary definition, id. at 3 1 1. quoting from The Oxford English Dicrionan,, 2nd ed., 1989: "Research (noun): I. The act of searching (closely or carefully) for or after a specified thing or person. 2a. A search or investigation directed to the discovery of some fact by carefuI consideration of study of a subject; a course of criticaI or scientific inquiry. 2b. Without article: Investigation, inquiry into thing. Research (verb): 1. To search into (a matter or subject); to investigate or study closely. Also, to engage in .research upon (a subject, a person etc.) y19831 F.S.R. 545 (Ch. D). '' 37 F.C.R. 99 (1 990) (F.C. Aust.) 53 The defendants had tried to argue that a news clipping service they provided was fair dealing since their clients were engaged in research. j4 (1997): 150 D.L.R. (4th) 324,75 C.P.R. (3d) 1 (Ont. Gen. Div.) The most recent fair dealing case to be decided in Canada, CCH Canadian Ltd. r7 Law
Society of Upper anad da". also considered the scope given to the section 29 defence.
This case concerned the practices of the Great Law Library at Osgoode Hall in the
copying and distribution of case reports to lawyers, students and other members of the
Great Library on request. The defendant tried to argue that, through a purposive
interpretation of fair dealing, the Great Library could be said to be dealing fairly with the
works in question: the purpose of the custom photocopy service was research. The
plaintiff argued in response that the fair dealing provisions could not apply because the
relevant purpose under the Act is that of the individual or organisation making, storing
and distributing the copies, and not that of the persons to whom the copies are ultimately
communicated. Gibson J. accepted this argument:
"The copying by the defendant in the course of itç custom photocopy service was not for a purpose within the ambit of fair dealing notwithstanding that the ultirnate use by the requester of the photocopying rnight itself be within the ambit of fair dealing... 1 am satisfied that the fair dealing exception shouId be strictly constr~ed."~~
This judgement, then, is illustrative of the narrow confines within which the Canadian judiciary has interpreted and applied the fair dealing defence. It is also evidence that the
narrowing of the defence is being achieved principally through a restrictive construction
of the enumerated purposes. One might have imagined that the circumstances of the case
would demonstrate the need for a broad construction on the basis that the case concemed
certain fÙndamentaI issues: counsel for the defendant raised, not only fàir dealing, but
also overriding public interest and Charter rights as defences to infringement. It was
55 Supra. note 1. argued that public interest weighed in favour of the defendant in due administration of justice, maintenance of the mle of law and the enhancement of basic constitutional values induding equal, unresmcted access to the law. Such fundamental values, it was submitted, would be threatened by the assertion of monopoly rishts in individual case reports. The defence also cited sections 2(b). 7 and 15 of the Canadian Charter of Rishts and Freedoms, promoting freedom of expression and access to justice, including access to lesal resources. In essence, thz court was being urged to consider that "[tlhe transcendent constitutional value at the heart of [these matters] [was] access to justice"si.
In connection with matters of public interest, however, Gibson J. insisted that the action was not about access to law, which could be obtained through other sources, but rather, was about payment of a license fee. On this basis, he was "not satisfied that the role of the defendant ... is such as to entitle it to override any copyright interests that the plaintiffs have or might have on the works in issue"5s. He was equally dismissive of the Charter issues raised, arguing that such questions would be more effectively discussed in a proceeding brought by a litigant asserting infringement of bis or her Charter rights in the context of effective representation or access to legal resourcess9.
56 Id. at 207. j' j' 1d at 179. -5s ld ar 201. AIthough Gibson J. acknowledged that the defendant was "unique... both historically and in current practice, in its roIe in the administration of justice and in tems of the nature and contribution of its Great Library to the administration of justice", he was "not satisfied that the public interest in the due administracion ofjustice, the maintenance of the mle of law and the enhancement of basic constitutional values through relatively equal, unrestricted access to the law would be significantly impaired through recognition and enforcement of any copyright interests that the plaintiffs rnight have in the works in issue." (Id. at 204-5). 59 For a full discussion of the question of standing in this case, see id. at 209-1 1. Gibson J. found that the defendant lacked standing to advance Charter arguments on the basis that the defendant was seeking to attack, not the constitutional validity of legislation by reason of Charter grounds, but rather the It is clear such obstacles to the defences of public interest and non-constitutionality -
whether the public interest is so geat as to ovemde the property rights of the copyright
owner or whether the present party has standing to bring a Charter action - will likely
anse wherever these defences are raised and considered separately. However, if Gibson J.
had adopted a broad, purposive understanding of the role of fair dealing in such
circumstances, it would have been open to him to find in favour of the defendants in
recopition of the importance of the issues raised in this action. By failing to analyse the
role and purpose of the fair deaiing provisions and the intent contained therein, the court
prevented itself from using the defence in an instrumental way. Perhaps, if the court had
ascribed sufficient importance to the fair dealing defence, taking into account the role of
fair dealing as the primary means of protecting the interests of the users and the public in
general, then it would not have been able to avoid considerations relating to fundamental
rizhts and public interest in its fair deaIing inquiry.
It seerns to me that the court's failure to ascribe sufficient import to the role of fair
dealing within the broader context of copyright policy can, in turn, be attributed to its
failure to understand the purpose of the copyright system as a whole. EarIy in his judgement, Gibson J. stated what he understood to be the purpose of Canadian copyright
law:
"The object and purpose of the Copj~ightAct is to benefit authors, aheit that in bettefiring authors. ir is capable of'havirzg a ssrlbstanriczlly bmader-based p~ appropriateness of legislation and a course of action in support of rights conferred by that legislation to obtain a particuIar remedy such as a permanent injunction." (Id.at 2 1 1). 90 berze$r through the encouragement of disclosure of works for the advancement of learning or, as in this case, the wider dissemination of la^."^' According to Gibson J., then, the 'broader-based public benefit' that can be denved from the copyright system is no more than incidental to the actual purpose of the system, namely, benefiting authors. To understand the purpose of the Copyright Act in this way is clearly to turn the rationale behind copyright law on its head. This misconstruction of copyri_ght is also evident in the judgements cited with approval by Gibson J. Gibson quotes the words of McLachlin J. in the case of Bishop v Stevens, wherein she opined that "the Copyt-i$2 Acr, 19 1 Il was passed with a single object, namely, the benefit of authors of al1 kinds, whether the works were literüry, dramatic or rnusica~"~'.Gibson J. also quotes with approval an account of Canadian copyright law given by Reed J.: "the purpose of the Copyright Act is and has always been to gant a monopoly. The legislation histoncally, in rny view, had two purposes: to encourage disclosure of works for the 'advancement of leming', and to protect arzd I-elvard rhe Nzrellectrral efort of tlze anthor.. .."6' The court's refusal to characterise copyright as a statutory creation designed with the purpose of benefiting the public, meant that it was unable to satisfactorily locate the fair dealing defence within the context of copyright policy. It is not surprising, then, that the court was unabIe to recognise the undesirability of its 'strict construction' of the fair GO Id. at 1 87 (emphasis added). "' 3 1 C.P.R. (3d) 394 (1990), at 403 (emphasis added). Quoted by Gibson J. in CCH Canadian Lrd. (supra. note I ) at 187. "'ripple Compurer. hc. v ~WackirzroshCornputers Lrd., 1O C.P.R. (3d) 1 ( 1986), at 35 (ernphasis added), (afl18 C.P-R- (3d) 129; affd 30 C.P.R. (3d) 257). Quoted by Gibson J. in CCH Carradian Lrd. (supra. note 1) at 187. Gibson J. also cites the case of Tele-Direcr (Publications) inc. v Anzerfcatl Business informariorz. IIIC.76 C.P.R. (36) 296 (1998), to support the proposition that the Copyright Act should be interpreted in light of its object and purpose. In this case Décary J-A- expressed the opinion that "[olne should always keep in mind that one of the purposes of the copyright legislation, historically, has been 'to protect and reward the intellectual effort of the author (for a lirnited penod of tirne) in the work'-" (id. at 308). Quoted by Gibson J. in CCH Canadian Ltd- (supra. note 56) at 188. dealing provisions and the specific purposed enurnerated therein- It seems to me, however, that the vital role of fair dealing in cases Iike CCH Carzadiczn, which involve matters of pubIic interest and fiindamental rights, dictates the need for a broad analysis of the defence. By narrotvly construing an enumerated purpose, the court is in effect removing the dealing from the ambit of the defence before any further analysis can b'e espressly undertaken. This is entirely unsatisfactory. As a result of such an approach, the integral defence of fair deaIing is effortlessly circurnscribed, and any fundamental issues that might anse in the copyright action cmbe sirnply swept aside. D. 'Criticism and Review' In the light of the above discussion, it will not be surprising that the terms 'criticism' and 'review' have been accorded an equally narrow interpretation. In recent years, the section 29.1 defence has been raised in three major cases, al1 of which resulted in a rejection of the defence and a finding of copyrï,aht infringement. i) The MicheIin Case In the case of Cie Générale des Etablissement Michélin-Michélin & Cie. v C.A. W. - canada6', the defendants had been involved in a campaign to become trade union representatives for the employees at factory plants belonging to the plaintiff Their campaign involved the distribution of leaflets depicting 'Bibendurn' (the 'Michelin Man') who was the subject of trademark and copyright protection belonging to the plaintiffs- In the leaflets, a happy Bibendum was depicted stomping on the head of a small worker standing beneath him. As a defence to the copyright action, C.A.W. argued that they had simply engaged in a parody fonn of criticism and so were entitled to use Michelin's copyright as fair dealing for the purpose of criticism. Teitelbaum J. found that, nohvithstanding labour or alteration such as to produce an original work, the defendants' had used a substantial part of the plaintiff s copyrightH. It therefore fell to them to prove that rheir use came under the fair dealing exception. It was argued by the defendants that, in line with the recent decision of the US Supreme Court in Campbell aka. Luke Skywa2ke1- v Actfl-Rose Music ~nc.~',parody is a form of 'criticism' within the meaning of the Copyright Act. Tt was brought to the court's attention that parodic criticism by its nature requires substantial reproduction of a work in order to ensure that the parody is understood. By raising Bibendum's foot, altering his expression and adding dialogue66 the defendants argued that they had created a new and integrated Bibendum, which was intended to ridicule and mock his usual corporate image as a benign, smiling, safe figure. Furthemore, because the source is implicitly known, it was argued that there no requirement to cite the source in order to fa11 within the fair dealing defence. The court rejected these arguments: "The defendants faIl short because American case law perrnitting parody as criticism under the American doctrine of 'Fair Use' is not applicable nor terribly persuasive in the Canadian context of a different legal regime and a longstanding Notably, Tietalbaum J. approached the copyright issues with the question: "If the message conveyed by 'Bibendum' on the defendants' pamphlets and leaflets is very different [from the corporate 'Bibendum' image], can they lay clah to it as protected expression eilen rho~ghthe 'Bibe~ldrrtr' is nor tliefi-rtirs of the deferrdanrs ' orvu labotlrs?" Id. at 389. This is an interesting exampIe of Lockean property theory rhetoric creeping into Canadian copyright analysis. 65 1 14 S. Ct. 1 164 (1 994). discussed Nzfra. Chapter 3. 60 The leaflet depicted the worker saying "Bob, you bctter move before he squashes you". The worker in immanent danger under Bibendum's boot has apparently resisted the Union campaign and the caption from bis mouth reads: "Nah, I'rn going to wait and see what happens". Underneath, the bold print reads: "Don't wait until it's too late! Because the job you Save rnay be your own. Sign today for a better tomorrow." trend to deny parody as an exception- As well. exceptions to copyright infringement should be strictly interpreted. 1 am not prepared to read in parody as a from of criticism and thus create a new exception."67 This judgement clearly constitutes a serious restriction upon the fair dealing defence in cases of criticism. Parody is an important concern in copyright law and has been the subject of sorne academic discussion since the development of US law on the matter. Following the Michefit decision. it seems that the greatest protection for parodists in the Canadian copyright regime is dissimilarity with the original work. However. as the defence attempted to argue, this places parody criticism at a serious disadvantage to other forms of criticism: parody requires that the original copyrighted work is immediately apparent in the infringing work if it is to have the desired impact upon its audience. It should also be noted that, in parody cases. the question is not simply one of obtaining an appropriate license fee for substantial use - the argument that was used by the plaintiffs in the CCH Canadian case above. Rather the interest that is at stake in such cases is the copyright owner's interest in not being the subject of critical parody. Parody often exposes the author to risks insofar as he or she will be the target for humour and critique, and as such, it is likely often to be the case that the author will not sel1 at any price. In the Michelin case, for exarnple, it is clear that Michelin would not have sold the right to C.A.W to use 'Bibendum' in the way that they did. Thus, parody's unique value as a popular and powerful means of criticising social convention, suggests that basic econornic assumptions about voluntary eschange are unfounded. It follows that a 67 In Miclzeli)i, supra. note 63, at 379. decision to treat critical parody as fair dealing wouid be unlikely to have any impact upon thé financial returns to copyright owners that are presumed to spur creativitybs. It seems arguable that these factors in themselves are enough to suggest a strong need for parody to be brought within the fair dealing defence. It would not require much imagination or a huge degree of judicial creativity to categorise critical parody as criticism within the meaning of section 29.1. 1 cannot help but be disappointed by the conclusion reached by Teitelbaum J. that: "[iln sum, parody does not exist as a facet of 'criticism', as an exception to infnngement in Canadian copyright law. 1 do accept that parody in a seneric sense can be a fonn of cnticism; however, it is not 'criticisrn7 for the purposes of the Copyright Act as an exception under the fair dealing headingmV6' Teitelbaum J. went on to find, however, that even following the authons of AcrdFRose, the defendants would have failed in their defence on the basis that they did not mention the source and author7s name of the original on their leaflets as required by section 27(2)(a.l): 'mention' was held to mean something more than the casual allusion or 6s For an interesting discussion of the economic efficiency of treating parody as 'fair use', see Alfred C. Yen, KJleti Aurhors won 'r sell: Parodj~.Fair Use and Eficiency in Copyright Law, 62 U. Colo- L. Rev. 79 (1991). 6') [n Michelin, supra. note 63, at 38 1- Note that this decision was in line with prevailing authorities on the subject of parody and fair dealing. In Ludlow Mrisic Irrc. v Caizitzt Music Corp. Ltd.. (1967) 62 D.L.R. (26) 200 (Ex. Ch.), an injunction was issued to restrain the sale of a parody of Woody Guthne's "This Land is Your Land". The parodic version listed the various foreign powers that have invaded conquered or controlled Canada, implying that 'this land' belonged to anyone with enough rnilitary or economic force. The parody was considered to be an alteration of an original work therefore requirinç permission for re- recording. In ATC'Music Priblislzing L- Ro Radio Br~a~icasritzg,65 C-P-R. (2d) 109 (I 982) (Ont. H.C.), a parody based on The BeatIes' Song 'Revolution', which was a satirical comment upon the events leading up to the Constitution Act 1982 (beginning with the line "You Say you want a constitution") was found to infringe copyright in the origina1 work. See also Rorisseries Si-Hubert Liée v Le Sy~rdicardes Travailiettrs (Euses) de la Rorisserie Sr-Hubert de Dnuwnonciviiie, 17 C.P.R. (3d) 36 1 ( 1986) (Que, S.C.), where it was held that the parodic use of a corporate logo for pickering infiinged the plaintiff's copyright in that logo. The decision was based upon a basic analysis of substantial taking. This was aIso the approach taken in the case of Sorrrce Perrier (S.A.) v Fira-Less Markering Co., 70 C.P.R. (2d) 6 1 (1983) (Fed. T.D.). implicit acknowIedgement that form the backbone of parody. As such, this case provides another example of the way in which a strict acknowledgernent requirernent could defeat a fair dealing defence even if al1 other considerations were found to point towards fair dealing". Teitelbaum J. also opined that the defendant's use of the copyright would not meet the standard of fair treatment required by the fair dealing provisions because the use had held the "cuddly marshmallow creature of safety and responsibility" up to ridicule. Of course. the court gave little weight to arguments that parody must, by definition, have some sort of bite in it; there is no requirement, afier all. that criticisms and reviews must be positive before they come under the fair dealing provisions. A harsh review is not outside the scope of the fair dealing defence simply because it might do some harm to the marketability of the copyright work. It is the purpose of cnticising that bnngs the use within the intended bounds of the defence. Once again, then, this case is illustrative of the restrictive interpretation imposed by the courts upon the fair dealing defence. The interpretation has not been widened even where such fundamental issues as the right of freedom of expression are at stake. In Michelin the court found that the defendants' freedom of expression had not been infringed in contravention of section 2(b) of the Charter, as the use of another's private property as a vehicle for expression is not protected under the section 2(b) umbrella. The coun rejected 70 See supra., Chapter 3, note 77 and accompanying text. 96 al1 arguments that copyright should be construed as quasi-public property. state- sanctioned under the aegis of the Copyright Act. Notably, in considering whether the 'purpose and effect' of the Copyright Act was to restrict fieedorn of expression, Teitelbaum J. stated that, if he had found a limit upon freedom of expression, this could have escaped under the balancing clause contained in section 1 of the Charter. In defining the objective of the impugned stamte. the judge pointed to "the protection of authors and ensuring that they are recompensed for their creative energies and works"". Then, applying the Oakes test7', the court found that: "Copyright rninimally impairs the Defendant's nght of fiee expression by the very well-tailored structure of the Copyright Act with its Iist of exceptions in section s 27(2) and (3)."" Three important issues can be drawn from these conclusions. Firstly, it is clear that the court took a distinctly proprietarian approach to the copyright mode!. Secondly, the court understood copyright not only as nghts-based, but as author-based, definin% the goal of :I Supra. note 63, at 40 1 - -3 - R 1- Oakes, ( 1986) 26 D.L.R. (4th) 300. Under the Oakes test there are three prongs of inquiry to establish constitutionality: i) rational connection of the law's objectives to the means; ii) minimal impairnent of the infringed Charter nglit; and iii) proportion in the effects of the means and the objectives. In applying the test, Teitelbaum J. also relied upon the judgement of Dickson C.J. in Invin Toy Ltd. v Quebec (Attorney-General) , 25 C.P.R. (3d) 417 (1989)' stating that "the Court should give Parliament a 'margin of appreciation' in evaluating whether the impugned Act minimally impairs the Charter right in question", and so finding that he could not "Iightly substitute what might be [his] evaluation of the least drastic means for the choice of the legislature"; in Michelitz, supra. note 63, at 402. '' rd,at 402. The court also opined, in relation to the -rational connection' prong of the Odes test. that: "[tlhere is a definite and efficient Iink beîsveen the gorrl ofprotecting the imeresrs ofarct/~orsanci copyright hoiciers bj*gr-atttitzg [hem a monopoly oti the riglrt to use and reprodzcce their wor-kr and the ab il ity to enforce those interests in an action for copyright infringement, The Copyriglzr Act does not prohibit attacks on the authors of works or their ideas. lnfnngers are only liable for reproducing the work or a substantial part of the same." (Id.) (Emphasis added). It is once again interesting to note that the court defined the 'law's objecrives' in terms of the author. With respect to proportionality, the court found that the Copyright Act was a reasonable limit prescribed by law in a free and dernocratic society, because the defendant's were the copyrisht legislation as "protecting the interests of authors and copyrisht holders by -oranting them a monopoly on the right to use and reproduce their works"". Thirdly, the court apparently recognised the relevance of the exceptions contained in the Act with respect to its constitutionaIity. Of course, the force of this observation is clearly Iessened by the beIief that a section 1 analysis was not required in any event, because the use of private property is not a protected rneans of expression. It is, however, in the light of this third observation that we can identiS, the connection between the fair dealing provisions and the Charter values involved in copyright actions. I have already hinted at the importance of considering these Charter-based concems in a fair dealing inquiry per se, and not sirnply as an alternative, unrelated challenge. TeiteIbaum J. implied that the fair dealing provisions would have to be 'well-tailored' and sufficiently broad if they were to ensure the minimal impairment of users' rights. Arguably, then, if this is not so, the justifiability of the Copyright Act falls away. This is not simply a Charter issue: rather, the entire foundation of a copyright scheme depend upon the coincidence of the interests of copyright owners and the users of copyright matenal. The principal means of protecting the interests of users where this coincidence no longer occurs is through the exceptions, for without thern copyright would operate to defeat its own purpose- Thus, in relation to the Charter, the question remains whether the list of exceptions is suitably 'well-tailored' to protect the interests of users and the public. The mling in the able to convey their message in ways that did not involve the use of "the Plaintirspropers> in violation of 9 8 Michelin case would tend to suggest that, where private property rights and authors' interests dictate a broad interpretation of the copyright regime and a narrow constmction of the exceptions thereto, the interests of the user will be defeated by those of the copyright holder. This has clear implications for the 'minimum impairment' branch of the Oakes test. Questions of constitutionality, then, are resting upon one of hvo dubious assumptions: first, that copyright can be treated as absolute private property and so is not a constitutionally guaranteed vehicle for fiee expression; or, second, that the exceptions contained in the Copyright Act are nonetheless sufficient to satisfi the test of minimum impairment of constitutional rights in relation to the purpose and effect of the Copyright Act. Even leaving aside questions of constitutionality, however, questions as to the justifiability and effectiveness of the Copyright Act must remain. For both are thrown into doubt if the purposes behind the system are neither recognised nor fulfilled. The adequacy of the exceptions contained in the Copyright Act is a crucial consideration with regard to the justifiability of the copyright system. The point here is that, in relation to the copyright system, the question is not simply one of constitutionality. Given that the system is designed precisely in order to provide public benefit through offering incentives to creators, the justifiability of the system as a whole, and its efficient operation, require that the regime provides the necessary incentive without unduly restricting the public access to works for educative, transfomative or creative purposes relating to the right of freedom of expression, or othenvise. the Copyrrghr Acr", and so the copyright did not create 'undue hardship' for the defendants (id- at 403). 99 Such analysis of the adequacy of the exceptions therefore requires that the courts accurately identiQ the purpose of copyright. Where this purpose is misstated as the protection of authors' interests the sheer inadequacy of the courts' construction of fair dealing is lost to sight. As in the CCH Canadian case discussed above, then, the Micheh court provided an unsatisfactory analysis of fair dealing due, in large part, to a broader failure to appreciate the purpose behind copyright, and the importance of a strong fair dealing defence in reIation to this purpose. ii) TIze Avanti Case The recent case of Pi-odrrcrionr Avanti Ciité-Vidéo Dzc. v Favreari et al-'' also dealt with the question of fair dealing in relation to parody. The action concerned a pomographic film that used the characters of La Petite Vie - a well-know Quebec television program - reco,onisable in their costumes and mannerisms although there kvas no appropriation of any dialogue of the plaintiff s characters. The court stressed the importance of the purposive test required by the Statute, meaning that only those uses that are for one of the purposes indicated in the proviso are capable of benefiting from section 29. It was noted that the restrïcted purposes set out in the legislative provision provided the principal explanation for the general refusal of the Canadian courts to protect parodists under the umbrella of fair dealing. However, Gendreau J. concluded by suggesting that the absence of a formal decision on this point in Canada was perhaps due to the fact that, in reality, ÏJ id. at 402. '' 1 C.P.R. (4d) 129 (1999). me parody is recognised as an exception to copyright infî-ix~~ernent~~.On this understanding of Canadian law, an authentic parcdy that ridicules another work or relies upon it to rnock or criticise a political of social event would arguably fa11 within the protective scope of section 29.1: "[Tlhe mie question is..- the following: what is the nature of the work produced? Parody and burlesque are Iiterary genres. Their purpose is to cnticise by ridiculing a work, a situation or persons. As soon as a work is qualified as such, it takes on its own ~ife."~' The implications of this opinion are, however, unclear. The court concluded that the defendant in this case had not aimed to criticise or report upon the plaintiff's work, but had simply intended to avoid the labour of literary or artistic creation. The result was thought to be a crass copy of the original work, devoid of any research or creation. As such, the work was not considered to be an example of 'true parody', and the court's comments on the parody question are no more than obiter. In my view, these comments should be taken serio~slyin the next parody case that cornes before the courts. It is true that the American jurisprudence cannot be transplanted into Canadian law without some consideration of the differences that exist between the two legislative regimes. However, James Zegers is correct, 1 believe, to argue that, while the Canadian fair dealing provisions are more restrictive that the American equivalent, even as they currently exist the provisions are broad enough to contain parody, which is, by definition, a form of criticismi8. The social importance of this form of critique also entails the need to minimise the impact of substantiality considerations and acknowledgement '' Id. at 153. requirements, which tend to operate contrriry to the parody model. The fair dealing provisions are the primary source of protection for transfomative uses that have taken a substantial part of a copyrighted work; the intent behind the doctrine fiom the time of its first appearance was to provide protection for secondaq works that supersede the original and that therefore provide a public benefit in and of thernse~ves'~.Parody is a prime example of such transformative use, and so should be free to enjoy the protections offered by section 29- This is particularly important in the light of the histoncal significance of parody, its relation to freedom of expression, the diffculty of obtainin; appropriate kense, and the fact that, by its nature, a parody will rarely conflict with the commercial expectations of the original's o\vnePO. Clearly, then, the incentive rationale behind copyright law does not justie the protection of copyrighted works from potential parodists. Furthermore, the rationale behind fair dealing unambiguously embraces the work of these parodists. Thus, if, in the process of undertaking a fair dealing inquiry in respect of parody, a court were analyse the broader policy goals of the copyright scheme as a whole, and the intent behind section 29 in particuiar, it would be hard to dispute the relevance and applicability of the section 29 defence. It is rny hope that the obirer dicrzinz contained in the Avanti case wilI not be ------" Id. at 155. '' Pal-041 and Fair Use il1 Canada Afrer CampbelI v Acuff-Rose, 1 1 C.I.P.R. 205 ( 1994-95) at 209. 7') This is the policy goal that 1 identified, supra., Chapter 1, as being behind the original emergence of a fair use notion. Its reIevance is, 1 wouId argue, detectable in the present approach taken by the English courts to rnatters of parody and copyright infringemenr. See, e.g. Joy M~sic,Ltd v Sunduy Picturial Newspapers (1920). Ltd., [1960] Ail E-R. 703 (Q.B.D.),which held that the test for whether parody could escape a finding of infringement rested upon "whether the defendant had bestowed such a mental labour on what he has taken and subjected it to such revision and alteration as to produce an original work." (Per ludge McNair, at 708. so See H. Knopf, Lirnits on rhe Nature and Scope ofcopyright, supra. note 24, at 262. neglected when the court is next provided with an oppornuiity to mle on the parody question. iii) T'ze Hager Case The case of Haper v E WC Press id.", discussed above with reference to the section 29 defence, was aIso concerned with the applicability of section 29.1. Once again, the court rejected the defence. Having considered the dictionary definitions' of 'criticisrn'. the court reached the decision that the defendarx's use of the copyrighted work was not "for the purpose of criticizing either the text or the ideas in Barbara Hager's book"s3. This judgernent is authority for the proposition that, in order for purposes to corne within the meaning of 'criticism' in the Act, the object of criticism must be the work or the idea communicated by the work. Also, it is clear that the court will not accept as fair dealing a substantial amount of quotations and paraphrases where the secondary work is in cornpetition with the original8'. iv) Conclusions on rhe 'Cuiticisin and Revieti*' Cases Supra-, note 39. See aiso, accornpanying text in connection with the section 29 defence for private study and research. The court rejected the both section 29 and 29.1 defences. The O-xjïxd EnglisA Dictionary,2nd ed. (1989), defined 'criticism' as: "The art of estirnating the qualities and character of literary or artistic work; the function or work of a critic... spec. The critical science which deals with the text, character, composition, and ongin of literary documents". Quoted id. at 312. s3 Id. S-r ZOO0 A~r~roraredCop-vrighr Acr, srrpra. note 2 1, at 4 1 1. Without commenting on the correcmess of rhese decisions, it seems fair to Say that the courts have undertaken little analysis and provided little guidance for future cases involving the section 29.1 defence. At present, it is certainly tme that a defendant should be wary ofrelying upon the applicability of the criticism and review defence unIess in the clearest of circumstances, and even then, only with deep pockets. The courts' failure to articulate the purpose and desired effect of the provision, not to mention the clear rehctance to accept its applicability, has left the section 29.1 defence narrow, exceptional and IargeIy unhelpfiil. E. 'News Re~ortinl) The major case to have considered the section 29.2 defence is Allen v Tororito Star Newspapers ~rd.*' At trial, the Ontario Court of Justice held that there had been copyright infnngement when a newspaper published an article relating to Shiela Copps M.P., and illustrated its comrnents with a pliotograph of the entire cover of a magazine upon which appeared a photograph of Copps taken by the piaintiE The fair dealing defence raised by the Toronto Star was dismissed in one sentence as "an interesting issue which ...has no application to the case at barms6.It seems that the trial judge accepted Allen's contention that the publishing of a whole photograph, even in the magazine form, could not fit the fair dealing defence8'. " (1997) 152 D.L.R. (4th) 518,36 O.R. (36)201. IO5 O.A.C. 19I,78 C.P.R. (3d) 115 (Ont. Div. Ct.). " 63 C.P.R. (3d) 5 17 (1995), at 525, 87 It should be noted, however, that the Canadian legislation does not contain the exception for photographs that appears in the corresponding British fair dealing provisions on reporting of curent events, On appeal, however, the Ontario Divisional Corn overruled this decision, holding that "[on] a fair reading of the statute, we think that the fair dealing defence as expressed in S. 27(2)(a) of the Copyright Act in force on March 10, 1990, applies in this casevgs. The court found that the thmst of the Toronto Star article was the change in image undergone by Ms. Copps, and as such it was apt for the paper to use the photograph at issue in juxtaposition with a Iater photograph. Togrther with the fact the photograph was not reproduced in colour and appeared on an inside page, the court felt that the purpose of the use could be interpreted as that of aiding in the presentation of a news story and not to gain an unfair commercial or competirive advantage over the copyright ownerss9. Having Y opined that "the test for fair dealing is essentially purposive"90, the court then went on the find that, "bearing in mind the nature and purpose of the use ... of the photograph'"', the deaiing fell within the required purpose and \vas fair. With regard to the Canadian courts' willingness to accept the fair dealing defence, this decision is heartening. It is, however, of limited importance: the case was decided on the basis of section 27(2) of the Copyright Act as it existed at the relevant time. By the time this decision was rendered, the fair dealing provisions had been the subject of substantial arnendment. In contrast with the prior section 27(2)(a), section 29.2. now requires that the source and the author of the work reproduced rnust be mentioned before a use for the purpose of news reporting can benefit fkom fair dealing protection. It is notable, then, 8S 78 C.P.R. (3d) 1 15 (1998), at 172. 69 The court thus rejected the argument that the Zamacois decision was authority for the proposition that reproduction of an entire copyrighted work could never be considered fair dealing for the purposes of news summary or reporting. '10 Supra. note 87, at 123. "' Id.. at 124-25. that, had this case been decided under the current fair dealing-provisions, it seems that the defence of fair dealing could not have succeeded. As we have already wimessed in regard to the British jurisprudence, the requirement to name a source can and will operate to preclude othenvise fair uses that corne within the enumerated purposes €rom satisfying the fair dealing criteria and so from enjoying the protection of the defence. The Tor-oizro Srar-case is a good example of where and how this might happen. IV. Conclusions: Fair Dealing before the Canadian Courts A. Fair Dealing and the Nature of Copvriszht in Canada It would seem, then, that in many ways the Canadian fair dealing jurisprudence is no Iess erratic than that of the British courts, and provides fùrther evidence of the tensions that exist in this complicated body of law. An analysis of fair dealing before the Canadian courts only reveals a distinct paucity of detailed discussion of the role and importance of the exceptions to and limitations upon the rights of copyright owners. In truth, no satisfactory consideration has been given to the interests that are at stake in the fair dealing provisions. Canadian courts have fiequently dismissed the defence out of hand, and, to the extent that the defence has been entertained, Fewer is correct in his observation that: "the judicial inclination has been to approach fair dealing as a polanzed debate: the defendant is either a pirate or a journalist (or the moral equivalent). But the degree to which the copyrighted work contnbutes to the underlying goals of copyright is never examined 2 As such the courts have approached the defence in a vacuum; devoid of guiding principle, policy or wider social aims. The public poIicy that underlies the Copyri_ohtAct has been omitted from the fair dealing inquiry. This omission stems from an unwillingness to recogrtise the integral role of fair dealing in the concerns that underpin and jus@ the cop_vright regime as a whole. In many ways this is connected to the uncertainties surrounding the philosophical bases of copyri_ght, and a continued focus upon property, the author, and rishts-based considerations. The narrow interpretations presently applied to the fair dealing provisions are the resutt of a line of authorities that has consistently emphasised the purported need to restrictively interpret exceptions to copyright protection. In almost al1 cases where the defence has been rejected, the court had cited, amongst its reasons, the requirement that exceptions be construed narrowly. Even the existence of these exceptions, however, should be evidence of the societal response against the untenable natural law notion that copyright is an absolute and unalienable rightg'. Accordingly, the refusal to interpret and apply these exceptions broadly is evidence of the reluctance on the part of a conservative judiciary to depart from this misguided notion. The natural right thesis is still one that is prevalent in che Canadian copyright tradition. in the context of Canadian copyright rhetonc, it is not unusual to encounter the opinion - expressed in one recent governrnent review of Canadian copyright law - that: "[~Jwnership is ownership is ownership. The copyright owner owns the intellectual works in the same sense as a landowner owns land."93 "'H. Knop f, Lintirs on the Nature and Smpe of Copyr-ighr, supra. note 24, at 280-28 1. "3 Repon of the Sub-Cornmittee on the Revision of Copyright, Standing Cornmittee on Communications and CuIture, .4 Charter of Rights for Creators, supra. note 1 2, at 9. See also the Information Highway Advisory Council Copyright Sub-Cornmittee, Copyright and the Infor~nationHighrvay: Final Report ofthe B. The Problem with Fair de al in^ in Canada For as long as this notion continues to inforni the general understanding of copyright law. Canadian jurisprudence will continue to adopt a wide concept of copyright protection and a restrictive approach to copyright exceptions. This restrictive approach is evidenced in. and perpetuatcd by, the legislative formulation of exceptions, which is both specific and exhaustive. As explained by McLachlin J. (as she then \vas). the result of such legislative specificity is that broad and innovative inteipretation of exceptions become difficult to "Furthemore, an implied exemption to the Literal meaning of S. 3(l)(d) is al1 the more unlikely, in my opinion, in light of the matters as diverse as private study, research or critical review, educational use, disclosure of information pursuant to various federal Acts, and performance of a musical work without motive or gain at an agicultural fair."'" It ought to be noted that, in this judgement, McLachlin J. argued that "infringement of Copyright may be construed as an invasion of property"9'. This again supports rny proposition that a simple property rights vision of copyright law leads towards a distrust of the exceptions and a belief in the need for their minimisation in the interests of justice. In order to move beyond this point, what is required is a rigorous re-interpretation of fair dealing that situates the defence in the context of an instrumental copyright regime aimed -- Stib-Cotttmirree on Cap-vright, at 28: "The Canadian Act is based on... the recognition of the property of authors in the creation and the recognition of works as an extension of the personality of their authors." This exphnation appears to be grounded in Hegelian property theory. For a discussion on the various justifications offered for Canadian copyright law. see Feiver, Consrir~~fio~zulizingCopyrighr, supro. note 25. ar 191-193. 94 Per McLachlin J, in Bkhop v Sievens, supra. note 6 1, at 405- "'Id. at 404. at providing a benefit to the public in the mauimisation of creativity, access and dissemination. Unfortunately. such development is hindered both by a cornrnon misconstruction of the copyright regime, and by the current formulation of the fair deahg provisions in the Canadian Copyright Act; a formulation that is "statutorily restrictive and not easily capable of a remedial, flexible. or evolutionary interpretation"96. 96 H. Knopf, Limirs on the Nature and Scope of Copyright. supra. note 21, at 258-9. 1 O9 4. A CO&lPA£UTIVEAPPROACH: THE U.S. EIKWPLE 1. The Nature of U.S. Copvright Law and Fair Use A. The US. Constitutional Setting The copyright law of the United States is founded in the empowering ciause of the U.S. Constitution, which grants to Congress the power "to pi-onzote the pi-ogress of scie~ice cird rrseJid ans, by securing, for limited times, to authors and inventors. the exclusive right to their respective writings and discoveries"'. The copyright clause thus evinces the sarne instrumental and practical force as appeared in the first statutory embodiment of copyright law, the Statute of Anne': the promotion of the "progress of science or the useful arts" is the explicit goal of the copyright regime established by Congress, and the guiding principle around which the law of copyright should be buiit'. It seerns that the constitutional expression of copyright's roIe has played an important part in the development and application of copyright, rendering clearly visible the normative aims that the system was intended to further, and ensuring that these airns are considered relevant and deteminative each tirne a new question arises. Moreover, the mere fact that it was deemed necessary to confer this right is, in itself, suggestive of the instrumentalisrn of copyright law; copyright is not simply the recognition of rights that I US. Const. art. 1, $8 [emphasis added]. In the same way that the US.Constitution States as the goal of cop_yightthe "progress of science and the usehl arts". the Srarure of Antze explicitly stated its purpose as "the encouragement of learning". See supra. Cliapter 1, section A, It is clear that the US.public policy was modellcd upon the Srarrtre ofAline from the wording of the purpose clause in the first federal copyright Act (Act ofMa-v 31, 1790, ch. 15, I Stat. 134): "An Act for the Encouragement of Learning, by securing the copies of maps, charts. and books to the authors and proprietors of such copies, during the times mentioned therein." naturally accrue in the creator. The ernpowering clause is thus testirnony to the utilitarian basis of the copyright system. and so undemines the force and relevance of natural rights theses regarding the nature of copyright. This understanding is supported by the leeislative cornmittee report on the 1909 bill, which effectively elaborates upon the empowerment clause: "The enactment of copyright Iegislation by Congress under the tems of the Constihition is not based on any naniral right that the author has in his writings, for... such rights are pureiy statutory rights, but upon the ground that the welfare of the public wilI be served and progress of science and useful arts will be prornoted ... [TJhe policy is believed to be for the benefit of the g-eat body of people, in that it will stimulate witing and invention to give some bonus to authors and inventors-"4 The public policy underlying copyright cm thus be derived directly from the phraseology of the Constitutional Clause. In his seminal work on the fair use doctrine, Leon Seltzer began by laying down what he considered to be the central elements to be drawn from the Copyright Clause: " 1. The purpose of copyright is to benefit society. 2. The nzeclzanisrn by which this purpose is achieved is to be economic. 3. Society's instnment in achieving this purpose is to be the author."' Seltzer believes that, through the phrases "to promote" and "by securing", it can be determined that the above description accurately represents the essential relationship between this elements. The idea of the author as the proper instrument of the public purpose is axiomatic in Seltzer's understanding of the copyright scheme, as it embodies the relationships that operate as the 'compass' in the development of public policy. If we '' H-Report No. 2222, 60th Cong., 2d Sess. Quored also in Report of the Register of Copyrights, Copyright Law Revision. House Committee on the Judiciary, 87th Cong., 1st Sess., at 5. 5 Leon Seltzer, Eiemprio)ts and Fair Use irl Cqqwighr: The E.rclrtsive Rights Terlsions in the 1976 CopL.rgju Act ( 1 9781, at 8 [Footnote omitted]. were to regard the author's interests and those of society as somehow opposed, then this would S~~OUS~Ydistort our conceptualisation of the copyri,eht scheme. As such these interests ought not to be characterised as 'primary' or 'secondary' or as 'competing'. but rather as 'overlapping' or 'complementary'. Only this characterisation is consistent with the assurnption contained in the constitutiona1 dause that copyright furthers the comrnon interest, It o~ightto be borne in rnind, then, that the constitutionalised nature of the US.copyright system, in contrast with the British and Canadian systems, has likely had a significant impact upon the judicial and public understanding of copyright and, consequentIy. the expectations attached thereto. Embodied in the Constitutional Clause is the policy basis for copyright. The power to secure the exclusive rights of authors is only conferred to the extent that it prornotes the progress of the usefiil arts. The constitutional setting for copyright in the U.S. identifies the public as the ultirnate beneficiary of copyright, and the allocation of temporary rights to authors ris the chosen means of achieving this end. This is not to Say, however, that the constitutional copyright clause in US. law effects a substantial divergence between the US. copyright Law afid that of Britain and Canada, Indeed, 1 wouId argue that the existence of the ernpowering clause does not result in any substantive difference between the general copyright laws of the three junsdictions, at least in respect of their overall purpose. The goal expressed in article 1, $8, is the same one that is shared by any copyright system, and cornes directly from the incentive-based theories that have underpinned copyright fiorn the time of its first statutory appearance. The key distinction to be drawn benveen the American and the British and Canadian systerns, then. lies not in the substantive values and goals embodied in the copyright regimes, but rather in the identification of these values and goals. The silence that exists nit11 respect to the philosophical and policy-based underpinnings of British and Canadian copyright systems, has rendered the values and goals within these systems largely invisible and easily overlooked. This distinction therefore has significant consequences regarding the visibility of and the importance accorded to copyright's instrumental ends. -4s such. it has also had a sigificant impact upon the weight and force accorded to authors' rights. However, although the underlying policy no longer enjoys express acknowledgement in the copyright enactments of Brïtain and Canada, it remains the defining explanation for copyright: the very existence of a copyright system is testimony to this wider aim6. It ought to be noted that this position is not uncontroversial: there is a widely held belief that the US. constitutional statement ought to make a difference to the interpretational approach accorded to US. copyright law. For example Normand Tamaro argues that, when Canadian or British cornmentators draw cornparisons with the American system, they ought to take into consideration the fact that "historically ... English case law more firmly establishes copynght as a private property right than does Amencan case law"'. One explanation offered for this purported difference is that, following the constitution, copynght "will be said to be created for both the authors and societyns. To the extent that Of course, this understanding rejects the idea of copyright as a narural right and a property right that adheres in the individual creator as a result of his labour. See irrfra-, Chapter 5, section III. ' 2000 ..?tittorared Copyriglzr Acr, at 4 10. "d. this factor is seen as justiQing the distinction. I respectfilly disagree. Following the Constitution, it is easy to afim that copyright exists for the benefit of both authors and society. This is, however, no more the case in Arnerica than it is in the U.K. and Canada. As 1 have argued in the preceding sections, the copynght laws of Brîtain and Canada are firmly situated within the same instrumental policy mode1 as that which underlies the US. system. The historical developrnent of copyright law is evidence of this factg. B. The Relationship between Co~vn.~htand Constitutional Freedoms Furthemore, the inclusion of a copyright clause in the Constitution seems to have entailed an increased awareness of the interplay between copyright and other constitutional guarantees. As we have seen in the previous section, freedom of expression has only been invoked in a handful of Canadian cases since the passage of the Cliarrei; and never to much avail. The Canadian courts have tended to dismiss free speech issues out of band". This is the result of a general perception that freedom of speech issues bear no direct relation to the copyright system. The raising of such issues in copyright actions is therefore perceived as a desperate grasping at straws extemal to the functioning of the copyright regime. In other words, Cizarrer-based challenges are, it seems, regarded with distrust, as if they represented the unnecessary and undesirable encroachment of constitutional freedoms into the discrete domain of copyright. See 'An Historical Overview', supra., chapter 2. 10 See e.g., T'le Qrteen v James Lorinrer, 77 C.P.R. (2d) 262 (1 984); Cie Générai des Etablissrnent bficlzélin-Michélirt & Cie v C.A. W. - Canada, 71 C.P.R. (3d) 348 (1997); CCH Canadiart Lrd. v Law Sociey ofUpper Canada, 2 C.P.R. (4th) 129 (1999); and supra., Chapter 3. There appears to be a greater an-areness. in the United States, of the possible conflicts that may arise behveen copyright and freedom of expression. 1 believe that recognition of the risk of conflict is substantially more prevalent in US- copyright jurispmdence because of the dual appearance of article 1, $8, and the First Arnendment. Lvhich provides that Congress shall make no law abridging freedom of speech or of the press. The potential for conflict bettveen the hvo constitutional provisions thereby demands consideration. Such consideration should be undertaken on the basis that the constiturional provisions were intended to be compatible; an intention that is evident through the limitations contained within the copyright clause. The phraseology of the empowerment clause constitutes both a gant of, and a limitation upon. congressional power". The intent to limit Congress' power is explicit and implicit. The clause explicitly States that the rights secured to authors and inventors will exist only for a limited time. Implicitly, it is clear that the gant of power is limited by the obligation imposed upon Congress to use the power towards the ends expressly stated. This also implies that copyright is limited in scope. Moreover, the power granted to Congress was apparently intended to operate as an engine of free expression, which encompasses the right of access to, as well as the dissemination of, ideas". In this way, the limitations imposed upon the gant of power are reflective of the philosophy and policy behind US. copyright law. Copyright must be recognised to be, by its nature, a limiteci right created with a specific and identifiable prri-pose. In the light of article 1, $8, a concept of copyright as a natural or absolute proprietary nght inhering in II Ray Patterson, Fair Speech. Copyright alld Fair Use,40 Van. L. Rev. 1 (1 987), at 3. 115 al1 creators. becomes untenabk. This is not to Say that the underlying philosophy of copyright has been resolved jurisprudence. Like Britain and Canada, the US. copyright law hangs tentatively üpon an uncornfortable union of proprietary and regulatory concepts. This is perhaps the inevitable result of a regulatory scheme which relies upon proprietary concepts; concepts which are overemphasised whenever copyright is characterised as the protection of an author's creations, and not as the means toward achieving creation and dissemination works. The benefit that attaches to the US. copyright system, however, is the articulation of a policy goal that clearly bypasses the notion of the creator as naturally entitled to proprietary rights in his or her creation. This constitutional statement seems at least to place an unambiguous restriction upon the proprietary aspects of the regulatory copyright schemeI3: a restriction whose ambiguity in the UK and Canadian contexts has resulted in much confusion, the distortion of policy cornmitments, and the overemphasis of property considerations, A further result of the Constitutional statenient, then, is perhaps a greater readiness to acknowledge the potentiaI for conflict between copyright and other constitutional guarantees, and thus, a greater willingness to resolve them through limitations placed upon the copyright scheme. Such limitations appear less remarkable, and more readily justifiable, when copyright itself is perceived as dependant upon an inherently Iimi ted constitutional gant of power. C. The Effect of the U.S. Constitutional Statement upon Fair Use " Id. at 4, note 12. As 1 argued in the preceding chapters, failure in the U.K. and Canada to sufficiently achowledge the instrumental ends of the copyright system has a subtle but indisputable effect upon the scope of copyright and fair dealing: it tends to result in wide copyright protection and a concomitant reluctance to curtail the rights of copyright owners. It is not surprising, then, to find that the US. copyright system has provided a more comfortable locale for the development of the fair use doctrine than that of the UK or Canada. The Constitutional clause conveys the policy rationale for copyright: namely, that the interests of the public in maximising creativity overlap with the interests of authors in protecting copyright. At the moment when the interests of the public and of the copyright owner cease to complement one another and begin to compete, the rnanifestly instrumental underpinnings of the U.S. law support the need to derogate from general patterns of copyright enforcement and to detemiine what is most beneficial to the public. The question is therefore not one of fair use versus individual rights, but simply a question of two aspects of social policy being in tension with one another". A hnctional analysis is required to assess which route will ultimately benefit the public, the enforcement of copyright or the protection of fair dealing. The emphasis must then be placed upon access and dissemination, as opposed to creation or production'5. The space 13 This has not, however, prevented the development ofjudicial rhetoric based upon proprietary concepts; ses infra., section III. A. 1 -1 See Jeremy Waldron, Frotn Artthors to Copiers: Itzdividual Rights and Social Values iri Intellecrual Propeq. 65 Chic-Kent L. Rev. 541 (1 993), rit 560. Waldron notes that, notwithstanding the officia1 position that copyright is rnatter of social policy, courts do not treat copyright unambiguously as such: the rhetoric employed by the courts more ofien suggests a conflict benveen fair use and fundamental Nzdividual rights. 1s See Patterson, Fair Speech, supra. note 1 1, at 6. Patterson argues that the belief that copyright's purpose is best served through ensuring creation supports a proprietary view of copyright; on the other hand, if one believes that copyright's purpose is best served by ensuring the distribution of works then this position supports a regulatory conception of copyright. required to effect this shift in emphasis is provided by the fair use doctrine. If we overlook the moment when these interests diverge. the space that esists for fair dealing is squeezed out of the analysis and the assumption persists that copyright. if applied, will continue to serve its purpose. Where there is an inadequate acknowledgement of the instmmentality of copyright, as we find in both the UK and Canada, then the space available for this shift in ernphasis is slight: the fair deaIing provisions are narrondy drawn and restrktively interpreted. This is, 1 have suggested, the result of confusion surrounding the conceptual underpinnings of copyright law in the UK and Canada. In the U.K. and Canadian systems, this po1icy aim of benefiting society through maximising this creation and dissemination of works esists only between the lines of the current legislation. As we witnessed in the previous section, the result has been a general lack of concern regarding whether, and the extent to which, the interests of the public and the copyright owner do indeed overlap. The point 1 wish to make clear is chat the express recognition of the role of public interest in a copyright scenario leaves greater space for the possibility of fair use. As such, the application of fair use is facilitated by articulating the explicit purpose of copyright as providing public benefit, thereby explicating the policy basis of the fair use doctrine. The fair use doctrine evolved precisely because the courts recognised that on occasion the policy behind copyright might be best served by allowing the unauthorïsed but fair use of copynghted material. The focus, then, should be upon the most effective route towards furthering the policy behind the copyright regime. Fair use therefore has a distinct advantage over the fair dealing equivalent in the U.K. and Canada because it is located firmly and explicitly within this policy model. Fair dealing. on the other hand. is at the mercy of a system whose justifications and motivations are detectable only in tacit policy objectives and the occasional nod in the direction of public interest. Such subtle indicators are soon lost beneath the mass of individual property rights and economic interests. However, before embarking upon a discussion of US. fair use law, 1 should re-emphasise that the confusion surrounding copytight policy in the U.K. and Canada is not the result of any substantive difference between the purposes underlying American copyright and those underlying British and Canadian copyright. Rather, these purposes are, 1 have argued, largely identical. The confiision that pervades the British and Canadian copyright philosophy is a result of the failure to acknowledge and articulate such underlying purposes. A failure that has left the fair dealing provisions is these copyright systems relatively impotent when compared with their American counterpart. II. Fair Use Legislation in U.S. Copvri~htLaw A. The US. Fair Use Clause Article 106 of the US. Code gives five fundamental rights to copyright owners: reproduction, adaptation, publication, performance and display. These broad rights are subject to qualifications that appear in sections 107-1 18. Article 107 contains the U.S. fair use provisions. Article 107 allows the fair use of copyrighted works "for purposes srdz as criticism, cornments, news reporting. teaching.. scholarship or re~earch"'~.The detemination of whether a use is a fair use is to be made based upon a weighing of at least al1 four factors enumerated in subsections 1-4: "...[F]actors to be considered shall irzclride: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the arnount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." " Section 101 of the Copyright Act defines the terms "such as" and "including" as "illustrative and not limitative". It is clear, then. that in stark contrast with the fair dealing provisions contained in the copyright legislation of Britain and Canada, the US. fair use provision is intended to be flexible and incliisive. The purposes gïven in the preamble to Article 107 merely illustrate uses that may benefit from fair use; they do not exhaust them. The broad definition of fair use contained in this article, then, is facilitative of a wide and discretionary approach to judicial analysis. The statutory codification of fair use, which had developed as a common law doctrine in the American courts since the early nineteenth ~entury'~,was intended to be a restatement of the existing judicial doctrine and not to change, freeze, narrow or enlarge 16 Ernp hasis added. 17 Emphasis added. '%-g. Grav v Rtlsseil IO F. Cas. 1035 (C.C.D. Mass 1839) (No. 5728)- Justice Story stated, with reference to a grammar book that appropriated portions of the plaintiffs work, that: "The question ... must be compounded with various considerations; whether it be a bon5 fide abndgement, or only an evasion by the omission of some unimportant parts; whether it will, in the present form, prejudice or supersede the original work: whether it will be adapted to the same dass of readers; and many other considerations of the same sort." (At 1038-1 039). For a thorough overview of the development of the common law doctrine of it". In the process of constructing the statutory provision, both the Senate and the House Comminee Reports were explicit in their intention not to provide a specific definition of fair use, but instead to use criteria evolved by the courts which, "though in no case definitive or determinarive, provide some gauge for balancing the equities"'O. The formulation of Article 107 can thus be situated within a particular understanding of the fair use doctrine: "[Slince the doctrine is an equitable rule of reason. no zenerally applicable definition is possible, and each case raising the question must be decided on its own facts ... [TJhe endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute." " I argued in Chapters 2 and 3 that the reluctance in Britain and Canada to limit the rights of copyright owners manifests itself in the fair dealing provisions of these jurisdictions, which embrace fair dealing only to the limited extent that it is a narrow exception requiring a restrictive interpretation. In the same way, rhen, the broad formulation of the fair use doctrine, which recognises the need for fair use to be flexible and available in relation to an unlimited nurnber of uses, is evidence of the general policy approach underlying the Amencan law. fair use in the US. before the 1976 enactrnent, see William Patry, The Fair Use Privilege irl Copyright Law ( 1985) Chapter 3. 1'1 Senate Cornmittee Report, 62: House Comrnittee Report, 65 and 66. This was considered to be particularly important "especially during a period of rapid technological change". The wording of Article 107 substantially echoes the farnous decision given by Justice Story in Folsom v Marsh, 9 F. Cas.. at 348: '-In short, we must ofien, in deciding questions of this sort, Iook to the nature and objects of the selections made, the quantity and value of the materiaIs used, and the degree in which the use rnay prejudice the sale, diminish the profits, or supersede the objects, of the original work." For an interestinç critique of the meanings cornrnonly attached to this passage, however, see Patiy, supra. note 18, at 19-25. Patry argues that the judgement rendered was not based upon an analysis of public interest or econornic harm, but rather on the primary basis that the defendant had not exercised real and substantial intellectual labour and judgement in his use of the 4.5% of the work he approprïated. 'O Senate Cornmittee Report and House Cornmittee Report, supra. note 19. " rd Quoted By Seltzer, supra. note 5, at 19-20. B. An AnaIvsis of the US. Fair Use Provision i) Flcrib dig- Flesibility in the fair use doctrine is at one time its greatest weakness and its greatest strength. In the fol soi?^ case, Justice Story summed up the difficulties inherent in fair use analysis when he described it as an "inmcate and ernbarrassing" question in which it is 66not.. . easy to arrive at any satisfactory conclusion, or to lay down any general pnnciples applicable to al1 cases"=. Fair use has also been labelled as "the most troublesome [issue] in the whole law of copyright"'3 . Flexibility is, however, an essential characteristic of an effective fair use exception, allowing the courts to rnould and shape the doctrine according to the exigencies of technological developments and existing practices, and in the light of the system's broader policy aims. But more than this, flexibility ensures that the doctrine can be applied wherever the court believes that a use is fair. reasonable, and in the pubIic interest, and should therefore be allowed. As the sole general exemption in the Copyright Act, the fair use provision represents the only flexible principle in a regime of expansive rights and ngid exceptions. It therefore requires, 1 would argue, an expansive interpretation in order to further the policy of copyright. A broad fair use provision enables the courts to adopt a pragrnatic and functional interpretation, and thereby obviate ngid application of the Copyright Act where such application would hinder the furtherance of the policy aims around which 7 7 -- Sirpra note 19, at 342. " Dellar v Samrrel-Gold~vynInc. 104 F.2d. 66 1, 662 (Zd Cir. 1939) (per curiam). copyright is built. As such, the indeterminacy of the doctrine is testimony to its inherent nature as: "a multifaceted process by which courts can finely calibrate not only the equities between the parties in a given case, but ako the fundamental public policies at stake in drawing the line behveen private property and free use.*' " This vision, which understands fair use as a general principle that operates within the interna1 dynamics of copyright as a whole, is vital to a cohesive copyright system. It is a vision that has failed to pervade the copyright discourse in the U.K. and Canada to the same extent that it has in US. jurisprudence. In the US., it has been noted that the statutory language of Article 107 suggests that fair uses are those that contnbute in some way to the public welfare". It is also commonly recognised by the courts that fair use was fashioned as a means of balancing the public's interest in the widest possible dissemination and free flow of information and ideas against the author's right to compensation and proprietary control of her work? ii) The 'Bafancing ' Concept This characterisation of fair use as a mechanism by which to balance the interests of the author and the public is helpful insofar as ir focuses upon the functional aspects of fair use analysis and the public interests that are at stake. As such, it conveys an awareness of the importance of fair use as a rneans of ensuring that the strict enforcement of copyright '' William F. Patry and Shira Perlmutter, Fair Use Misconsrnled: Profi, Presun~priotzs.and Parody, I 1 Cardozo Arts & Ent. L. J. 667 (1993). 25 Reid. Fait- Use and the New Acr, 22 NY LS L. 497 ( 1977). Quoted in Cop-vriglzr atzd Literary Propet-y, 18 Am- Jur. 2d $80. '' Triangle Publicatioris inc. v Knighr-Rider Nervspapers Ittc. (CA5 Fla) 626 F.Zd 1 17 1 ; Roy E-rporr Co. Esrablisllrnetzt v Colunzbia Broadcastriig Svsrern Inc. (CA2 NY) 672 F.2d 1095. does not conflict with the purposes of copyright. This awareness implies recognition that. on occasion. the economic and proprietq interests of the copyright owner may have to give way to the public interest in access and dissemination. The importance generally accorded to this 'balancing' process within American jurisprudence is evidence that the courts regard the public interest as more than merely a subsidiary concern to be entertained only in the most extreme of circumstances. The social benefit to be derived fiom the use in question is placed firmly within the fair use analysis. As such, fair use is understood to be more than an exceptional derogation from copyright principles; it is recognised to be integral component of them. This understanding is facilitated and furthered by the getzer-al applicabilin, of the fair use provisions; unlike in the British and Canadian legislation, a fair use analysis can be trigsered regardless of the purposes behind the use. It is the need to consider the public interest that entaiis the possibility of fair use, and not whether the use satisfies an arbitrary purposive test. Fair use thereby enjoys the role of a general principal, as opposed to that of a narrow exception. There remains, however, something in this approach that concerns me. To my mind, there is a serious flaw in the characterisation of a fair use analysis as a balancing process: it suggests an understanding of copyright law as an attempt to balance social benefit with the idea that authors deserve to be compensated for their works. 1 have already hinted at my dissatisfaction with this ~nderstandin~'~.The clear inference to be drawn from this " Srrpra. Chapter 2, section IV. A. charactensation is that the interests of the author and society are competing. If we replace the assurnption that the interests of the author and the public in the enforcement of copyright coincide, with the belief that these interests are somehow opposed, then we have fatally undercut the policy foundation of copyright as a whole. The enforcement of the propnetary and economic rights of the copyrisht oumer is therefore dependenr upon the truth of the assumption that his or her interests in their enforcement coincide with society's interests. Fair use allows the courts to find that the interests of society will not be furthered by the enforcement of the copyright holder's rights? and therefore, that these righrs ought not to be enforced. Any other characterisation of fair use either blurs the concept of the author as the instrument in achieving the purposes behind copyright lawzs, or misunderstands those purposes. The result is the gradua1 erosion of relationships within the copyright scheme and the infiltration of conceptual confusion into the fair use analysis. Because the author is copyright's instrument in achieving a recognised social benefit, fair use represents an acknowledgement that, at a certain point, and for various possible reasons, the interests of the public may not always lie in the enforcement of the copyright owner's right. Although this is the general assumption in copyright philosophy, it is not an absolute. Where enforcement is likely to impose unacceptable costs upon society by limiting access, hindenng dissemination or restricting creation, then the fair use doctrine will protect the interests of society by refùsing enforcement. Fair use analysis, then, does not involve the balancing of confliciing interests, but rather, requires the court to establish whether the public interest has shified from copyright protection (where it is generally assurned to reside in accordance with the underlying philosophy of copyright) to the protection of an othenvise infringing work under the fair use doctrine. Thus. according to Jeremy Waldron: .-The point is not rn&ely that the individual rights of authors must be balanced against the social good. The Consriturion stipulates that authors' ri,crhts are created to serve the social good, so any balancing rnust be done wiîhiii the overall context of the public good, i.e. benveen the specific aspect of the public good that is served by intellectual property ('the Progress of Science and useful Arts') and other aspects of the public good such as the progressive eEects of the fiee circulation of idea~."'~ As such the relevant question is what will best further the policy goals that underlie copyright: maintaining copyright incentives or allowing fair use? This charactensation of the fair use analysis is entirely consistent urith Article 1, $8 of the Constitution, Article 107 of the Copyright Act, and, moreover, ivith the historical development of the fair use doctrine, iiu Marker Substiturabil-): and the Public Good 1 argued in chapter 2 that the fair use doctrine emerged out of a recognition that 'new works', which might othenvise fa11 fou1 of infnngernent laws, might fùrther the normative aims of copyright law. It was understood tliat such works should therefore be allowed where use of the original work was fair in the circumstances of the case. Analysis regarding the efforts of the secondary author. and the possibility that the new work would pp- " For an interesting discussion of 'author-as-instrument' and, consequently, the inadequacy of the 'balancing' notion, see Seltzer, Fair Use in Copyrighr supra. note 5, at 12- 16. Waldron, From Arrihors io Copiers, supra. note 14, at 848-49. supersede the original, were thus factors relevant to establishing whether the second work contributed something new and useful to the public and should therefore be protected from the normal mles of copyright infringement. Article 107 of the US. Copyright Act allows or, indeed, reqrrir-es courts to engage in this kind of analysis. The four factors that must be considered by the court in making a fair use determination ensure that the court weighs the importance of the infnnging work to the public in order to establish whether it is a use worth protecting. This is true even with regard to the fourth factor: "the effect of the use on the potential market for or value of the copyrighted work". While this factor is widely understood as entailing a solely economic examination of the effect of the infnnging use, it is my opinion that such examination does not simply go to the economic interests of the copyright ower. What is involved is an evaluation of the incentive mechanism of copyright law: does the public interest reside more in the maintenance of the incentive system through copyright enforcement (ensuring creation and maximising productivity) or has the public interest shified towards fair use (ensuring access and maximising dissemination). Furthermore, it shouid be noted that the public interest in ensuring access through fair use incorporates the right to use the material accessed and to Further disseminate the appropnated work in the context of a 'new work'. As such, by aIlowing educative, critical and transformative uses3' of copyrighted work, fair use may be found to better serve the incentive systern than enforcement of copyright in the original work. Analysis undertaken in regard to the founh factor. then. is relevant in deterrnining whether a shifi in the public interest has taken place. It is my argument that the type of harm at issue in the fourth factor inquiry is. essentially. ham caused by the substitutability of the secondary work. In other words. does the infringing workfil@ the denrand for the original3'? Where a secondary work cm act as a substitue for the original, it becomes less valid to argue that the secondaly use is a creation that provides significant benefit to the public. In the light of the hisroncal development of fair use, 1 have argued that benefit to the public is the organising idea behind the doctrine. Where nothing substantially new is contributed to the public by the infinging work, then the fair use rationale falls away. Without this rationale, the general motives behind copyright protection again come into play. We are thus retumed to the concept of economic incentive through enforcement of copyright. which, if neglected, will cause the public to suffer a loss in the creation of original works. Where a secondary work can be substituted for the original, it is unlikely that it will contribute something new to the public domain. As such, the refusal to protect it fiom copyright under the umbrella of fair use is unlikely to hinder the ultimate goal of copyright: the creation and proliferation of works for the benefit of society. "' The public interest in these categories of use is highlighted by David Fewer, Corrstirziriorializir~g Copyright, 55(2) L' of T Fac. of Law Rev. 175 at 239. " Fisher v Dees, 794 F2d, at 437-8, quoted by Patry and Perlmutter, Fair Use Misconstnted, supra note 23, at 693. See also, e-g., Consr~nrers'Union of Urrirecl Srares Inc. v New Regina Corp., 469 US. 823 (1 983). or1 remand, 664 F. Supp. 753, at 739: "The fourth factor is aimed at the copier who attempts to usurp the demand for the original work". The concept of market substitution, then, need not be understood as attaching importance onIy to the economic interests of the copyright owner. Of course, if copyright is mischaracterized as an author-oriented system, the economic interests of the copyright owner wilI be considered primary. This understanding of the fourth factor also will also follow frorn a vision of the copyright system as a rnechanism aimed at 'balancing' the competing interests of authors and society. In this model, the fourth factor inquiry would be characterised as an effort to establish whether economic loss suffered by the copyright owner ouhveighed the interests of the public in the secondary creation. This is, perhaps. a good example of the distortative effect that the 'balancing' concept has on the copyright system. Properly understood, 1 believe that the fourth factor inquiry is simply a further aspect of the fair use analysis intended to enable the court to indirectly assess the worth of the secondary work to the public. It is thus intractably linked to the original intent behind the fair use doctrine and the philosophical underpinnings of the copyright scheme itself. C. The US Fair Use Model: Does it Fit? The US.statutory copyright model and fair use provisions, then, have corne significantly closer than British or Canadian statutory fair deaIing to reflecting a comprehensive and coherent understanding of copyright philosophy, and the position of fair use within this philosophy. American fair use law is therefore entirely congruent with the historical development of copyright and fair use. Significantly more so, indeed, than the British or Canadian copyright regimes. The Constitutional statement expressiy enunciates the goals of the copyright regime, declaring the foundational assumption that the copyright scheme itself is believed to be in the public interest. Article 107 of the Copyright Act embraces these goals by recognising the need to avoid ngid enforcement of copyright where the public interest no longer coincides with the interests of the copyrisht owner. The fair use provisions are broad, flexible and non-exhaustive, and permit the court to examine aII the relevant factors of the particular case, with general discretion to refùse enforcement where it would stifle the very creativity that the Statute was designed to foster? In the US. copyright legislation. then, a coherent rationale for copyright encompasses the fair use doctrine as an interna1 mechanism, and one that is integral to the furtherance of its underlying policy. This position stands in stark contrast to the British and Canadian copyright systems and the fair dealing provisions conrained therein. In the preceding chapters, we saw how narrowly thrse provisions had been drarvn and interpreted. The exhaustive list of purposes permitting a fair dealing inquiry has bled the fair use doctrine of much of the original intent behind its comrnon law development, Fair dealing has been left as an arbitrarily applicable exception devoid of coherent rationale, principle or purpose. As such, the British and Canadian legislation both reflects and perpetuates the mischaracterization of copyright as an author-oriented, rights-based, proprietary concept. 1 have criticised this vision of copyright as both inadequate in the light of the policy motivations underpiming copyright law, and inaccurate in the light of the histoncal development of copyright and fair use. 32 Io wa State Uriiversiry Resear-ch Foundation In v. v Ani er.ica,l Broadcasring Compatzies /rit.. C.A.N. Y.. 130 It is my opinion that the statutory formulation of fair use and its context in US. copyright law is not only more appropriate as an efficient tool for furthering the purposes of copyright but, moreover, it accurately represents the historicai development of copyright and fair useJ3. The UK and Canadian legislatures would do well to learn from America's fair use provisions and move towards the adoption of sirnilar statutory formulation of fair dealing. As we have seen, legislative reform cornmittees have recommended this change in both jurisdictions to no avail. It is clear, then, that such a move involves more than simple legislative reforrn: first, it requires some departure f?om the wide, author-oriented understanding of copyright that continues to dorninate the British and Canadian models; second, it necessitates a willingness to ovemde les cris de coeur- of the copyright lobbyists, whose influence has been so great in the formulation of current copyright legislation. In this way, the UK and Canadian fair dealing exception could begin to more accurately resemble its historical beginnings, reflect the original intent behind its development, and thus be more appropriately suited to furthering the policies that underlie the copyright system as a whole. 62 1 F.2d 57. 33 Cf:William Patry, The F~irUse Privilege, supra. note 18, at 19-25. Patry argues that the in vacl 1 have qued above that Article 107 of the US. Copyright Act. in contrast with the fair dealing provisions of Britain and Canada, provides a suitable statutory framework for the kind of inquiry that the fair use doctrine necessitates. This provision enables the court to undertake a principled evaluation of the particular use, in the light of the original intent behind the fair dealing doctrine and the clearly understood policy goals of copyright law. The American fair use provision, then, has the potential ro function as part of the interna1 dynamic of the copyright system, maintaining the integrity of the system's incentive structure while recognising the value to the public interest of certain secondary works. It must be stressed, however, that, although Article 107 has the potential to operate in this way, this potential has not necessady been realised. The subject of discussion so far has been the substantive black-letter law contained in the American copyright legislation and the US. constitution. The analysis in Sections 1 and II has shown that the theory behind this law is expressly instrumental in nature. When copyright matters corne before the courts, however, the instmmentality of copyright becomes less apparent in.judicia1 rhetoric and in the outcomes reached. In practice, the application of copyright Law in US jurisprudence is not always tme to its instnimental foundations or utilitarian objectives. When discussing the value of the Amencan approach, then, it is not simply the letter of the Law that is at issue. Rather, attention must aIso be paid to the judicial reality wherein mistaken philosophies and political tendencies have a crucial role to play. A. Property Rhetork in Judicial ReaIitv 1 argued with respect to the British and Canadian copyright systerns. that a misplaced reliance upon notions of natural rights and property ownership was responsible for shifting the fair dealing analysis away from questions of public interest and towards the interests of the individual copyright holder as proprietor. Notwithstanding the expressly instrumental underpinnings of US copyright Iaw. the same tendency can be detected in American jurisprudence. As Jeremy Waldron observes, "although the official Iine about copyright is that it is a matter of social policy, judicial and scholarly rhetoric on the subject retains many of the characteristics of natural rights talk"'? Thus, although the Constitution, judicial doctrine and legislative history al1 point to the notion of copyright as subordinate to social purpose, concepts of moral entitlement have ansen around the social policy framework3', distorting functional analysis of copyright and fair dealing in a rnanner similar to that which we have observed in the British and Canadian contexts. Justice Thompson's famous dissent in Wheatoiz v Pecei's provides a good example of the encroachrnent of Lockean natural rights rhetoric into the judicial charactensation of copyright policy: "The great principIe on which the author's rights rests, is, that it is the fmit or production of his own labour, and which rnay, by the labour of the facuIties of the mind, establish a right of property, as well as by the faculties of the body.. .. ,936 Connected with this 'fniit of one's labour' idea is the 'sweat of the brow' doctrine that can be detected in the history of US Copyright law. An example of this doctrine at work can be found in the case of Jeweler 's Cii-culm-Prrb. Co. v Keyston Pub. Co. : -- .+ -" Waidron, Front Aur/zors ro Coprérs,supra. note 1 4. at 849. "The rïght to copyright a book upon which one has expended labor in its preparation does not depend upon.. . whether such materials show literary ski11 or originality, either in thought or in language, or anything more than industrious ~ollection."~~ Out of this doctrine emerges a vision of copyriat as rewur-d for labour expended, as a fair return for the sweat of one's brow. Thus, in Mazet- v Srek did the court sum the rationale for copyright as ansing from recognition that "[s]acrificial days devoted to such creative activities deserve rewards cornmensurate with the services rendered"'s. Then again, in the more recent case of Harper & Row. Publisher-s, Irrc. v Natiorr Elrterpr-ises. Justice O'Connor stated that "[tlhe rights conferred by copyright are desiped to assure contributors to the store a fair for their These cases provide only a few examples of the strength and pervasiveness of natural rishts-based rhetoric even in the context of a distinctly utilitarian system. The consequence of this rhetoric is that rights grounded in utility or social policy corne to be rezarded as ends in thernsel~e$~.When this happens, the policy goals suffer at the hands of those rights that were created specifically for their advancement. In the context of fair use, of course, this places the defendant at a distinct disadvantage to the copyright holder. The problem is clear in the case of Iowa Siare University Resear-ch Fonndation. Itrc v Anzerican Broadcasting Cos.. Inc., where the second circuit felt the need to emphasise -- 'j id at 850. 33 US. (8 Pet.) 59 1 (1 834), at 669-70- 37 25 1 F 83 ( 1 922), at 88. But cf: Feist Prtblicarions. itzc. v Rural Telepltorre Service Co itrc,, 1 1 L S. Ct. 1252 (1991). 3s 347 US. 201 (1954), at 219. '"371 US. 539 (1985), at 546. JO See Waldron, From Authors ro Copiers, supra. note 14, at 85 1-2. According to Waldron, the falIacy in this process is the assumption that authors deserve the rights that are secured to hem in the name of social policy: 'encouragement* becomes 'incentive', which becomes 'benefit', which becomes 'reward', which that "[tlhe fair use doctrine is not a License for corporate tlzefr, ernpowering a court to ignore copyright wherever the work contains possible public importance." Waldron succinctly expIains the flaw in this pronouncement: "The idea seems to be thar al1 use of an author's work by another without his permission is putatively dishonest and larcenous, and that 'fair use' represents a strictly limited departure ffom that background prohibition on stealing.. ..-34 1 The point 1 wish to rnake here, then, is that the expressly instrumental foundations of US copyright law have not proved immutable in the face of popular misconceptions regarding intellectual property and moral or natural entitlernent. Such misconceptions are therefore still capable of guiding the American courts' fair use analyses in spite of the systern's clearly articulated policy goals'". B. The Focus Upon Authors' Econornic Interests There is, however, another wonying tendency in US copyright jurisprudence which also poses some threat to the social policy character of the copyright system: while a focus upon property interests distorts copyright analysis in favour of copyright holders, the sarne is also true of a focus upon econornic interests. It is this tendency towards the elevation of authors' economic interests, 1 would suggest, that most threatens the public interest element in the Arnerican fair use inquiry. The problem occurs at the moment when the author's economic interests are wrongly situated within copyright policy as an becomes 'deserr'. Through this process "something \\.hich starts offas a matter of desirable social policy ends up entrenched in an image of moral entitlement." (id.) id. at 860. end, rather than a means. The economic benefits bestowed upon the author under a copyright system should, in accordance with the Constitutional statement and judicial doctrine, be understood only as the elected means by which to provide the intended incentive and thereby encourage creation, However, an examination of the US approach to copyright infringement and fair use (in particular, in relation to the first and fourth factor inquiries) reveals a dangerous tendency towards the characterisation of authors' economic inter-esrs (subordinate to and intended to operate in furtherance of social policyJ3) as authors' econornic rigizts (individual moral entitlements to be upheld and protected fiom external social demands). tj Presz~mptions:Cornmer-cial Natzrt-e und the Effecr on dze Marker A problem that wideIy attaches to Iaws that confer general discretion, such as the US fair use provision, is uncertainty of outcome. Such a broadly drawn provision clearly lends itself to distortion, manipulation and misconstruction. Thus, while the provision is certaidy capable of embracing the kind of reasoned analysis that I have recommended in the fair use context, it has not aIways led to such an approach in the American courts. Indeed, the application of Article 107 has proved widely problematic. The problems arise not only due to the flexibility of the doctrine, but also as a result of confusion caused by the presence of listed examples and the enurneration of relevant factors of consideration. Courts have often failed to appreciate the illusnative nature of these provisions or have attempted to construct some hierarchy amongst them, over-emphasising one factor at the " The critique of propew rhetoric in the domain of copyright offered in Chapter 5, is therefore applicable not only to the UK and Canada, but also to the US. 43 Waldron aptly characterises this type of economic benefit: "Offering the benefit is simply a matter of behavioural manipulation of a class of individuals who have shown that they can be relied on to promote the public interest only when it is made coïncident with their own." From Authors fo Copiers, supra. note 14. at 852. expense of anotheru. While a cornprehensive examination of fair use cases in US. jurisprudence is well beyond the scope of this paper, it may be useful to discuss a few of the Supreme Court's most seminai fair use decisions. The cases are illustrative of some of the misunderstandings that have surrounded Article 1O7 since its enactment- It has been suggested that, by delineating the common law fair use doctrine in statutory terms in the 1976 Act, Congress unintentionally encouraged the misinterpretation of the doctrine. As a result of its 'codificationT15, fair use has been subjected to the natural tendency of the courts to search for rigid rules in statutory language: "Despite Congress's desire that the courts continue to chart their own development of fair use, the very presence of the statutory provision has inhibited many from doing so-. . [Clourts have isolated and overemphasized individual words and phrases, taking as limitations on their power language intended as guidance. Having failed to adequately recognise, in the language of Article 107, the clear intent to preserve flexible and principled common law analysis, the fair use doctrine became subject to formulaic and mechanistic interpretation. Notsvithstanding that the language of Article 107 does not Iend itself easily to bright line rules or legalistic presumptions, the courts seemingly struggled to establish them. The Sony case, which was decided by the U Jonachon Evan Goidberg, Ab LV Thar the Fururz Has il rrived. Mqbe the Law Sltould Take a Look Mc frinledia Tecllnology and irs Inreracriotz With rhe Fair Use Doctrine [hence forth hfukitnedia Technology],43 Am. U-L. Rev. 9 19 ( l994/95) at 932. 45 Patry and Perlmutter, Fair Use Misconsrnted, szrpru. note 24, describe the term 'codification' as misteading in this instance on the basis that: "section 107 is not a typical statutory provision representing Congress's creation of a new law and establishment ofrules for the courts to apply. It is instead a direction to the courts to continue to develop the common law" (At 674) (Footnote omitted). 46 Id. at 670. Supreme Court in 1984, was largely responsible for triggering this judicial distortion of fair use, and is an excellent esample of a hard case making bad ladi. _fa) Tize Sonv Case The case of Sony Corp. of America v Univer-sa1 Ci@ Studios, ~nc.~~concerned the use of the Betamzx video tape recorder for the purpose of domestic 'time-shifting' of television progarnrnes. In evaluating the applicability of fair use to this practice. the court stated that, with respect to the first factor of 'purpose and character', "every commerciaI use of copyrighted matenal is presurnptively an unfair exploitation of the monopoly privilege that belongs to the owner of copyright"ig. The damage arising from this statement is less attributable to the Sony court itself, than to the courts who subsequently clung to the statement as a quick fix in fair use cases. Because of the difficulties inherent in comprehensive fair use analysis, it is perhaps not surprising that courts were eager to welcome a rule of thurnb as an escape route out of complex and principled eval~ation~~. However, as the Second Circuit observed in Maxtone-Graham v Brrrtchaell: - - 47 The court was forced to deal with complex issues of contributory infi-ingement on the basis that the defendant has mas-marketed a product that allowing the public to infi-inçe copyright on a huge scaIe. Fair use was raised as a means ofestablishing that the video-recorder was capable of commercially significant uses not involving infnngement of copyright. This cornplicated fact scenario and the cornplex legal anaIysis it entailed clearly fnistrated to a substantial degree the court's ability to forrnulate generally applicable legal principles. 364 U.S. 4 17 (1984). .l'>rd. at 451, Also, at 449, the court stated that "[Ilf the Betamax were used to rnake copies for a commercial or profit-rnaking purpose, such use would presumptively be unfair". 50 See e.g. Financial Info. Inc. v Moody's hzvesrors Sem. Inc. 751 F. Zd 50 1 (YdCir. 1984) at 509: "Sony requires that we recognize a presumption of unfair use by Moody's arising from its commercial use of the copynghted material". See also West Publishing Co. i. Mead Data Cent., Irrc. 61 6 F. Supp. 1571 (D. Minn., 1983, aJ'd 799 F.2d 121 9 (8Ih Cir. 1986); Raa'ji v Khakbaz 607 F. Supp. 1296 at 1302 (D.D.C. 1985); Hurcizitisott Tel. Co. v Fronteer Direcrory Co., 640 F. Supp. 386 ( 1986) at 3 90; Paramounr Picfures Corp. v Labrts 16 U.S.P.Q. 2d 1142 (1990). "[o]nIy an unduIy narrow reading of the langage in Son). Coip. and an inattention to the context could Iead to the conclusion that the Court intended to anach heightened significance to the element of comrnercia~ity"~~. As a simple matter, it ought to be remembered that, because the court classified domestic time-shifting as a non-commercial use, any statement reggarding the relevance of the commercial nature of a use was merely obirei- dicrrrm". It should also be borne in mind that the case was concerned with users' complete appropria-tion of copyrizhted work for their own convenience. The Court possibly feIt the need to goto great lengths to indicate thar, even although it was taking the dramatic step of allowing an "ordinary use"j3 to be a fair use, it would be very much iess generous in the case of '"ordinary uses" that were aIso Moreover, in the light of the opinion as a whole, it seems likely that the court had no intention of creating a technical 1egaI presumption and thereby effecting a shift in the evidentiary burdens of the parties55. The intention was rather to recognise the relevance of commercial nature in the balancing of the fair use Sactors, and to suggest that 5 1 fer Irving R. Kaufman. Circuit Judge, 803 F.2d 1253 (2"* Cir. 1986) ait 1262. The court rejected the appellant's suggestion that any incorne-producing use was unfair virtuaIly by definition: " We do not read Section 107 as requiring us to make a clear-cut choice between rwo polan charactenzations , 'commercial' and 'non-profit'. Were that the case, fair use would be virtually cbliterated, for '[alIl publications presumabiy are operated for profit"' (Quoting Koussei*itzXyL* Alleri. Torvme & Heath. 188 Misc. 479 at 483, 68 N.Y.S.Zd 779 at 783.) '' Patry and Perlmuner, Fair Use Misconstnred. supra. note 24, at 700. 5' 5' By 'ordinary use' is meant the "mere reproduction of a work in order tause it for its intnnsic purpose", 659 F.2d 963 at 970. This can be contrasted with a so-caIled 'productive use' in which "the copier himself [has] engaged in creating a work of authorship whereby he adds his own. original contribution to that which is copied", 3 M. Nirnmer, Nhmer ori Copyright, 5 13.05 (1985). 54 Gary L. Francione, Facing the Nariorr: The Srandurcis for Copyrighr. I.~Ifrirzgenzrnt.arld Fair Use of Fucnlal Worh, 133 U.Pa. L. Rev. 2 19 (1986), at 550. '' id. at 700 (" The conclusion is inescapable from both the textual and h. istorical context that the Court did not intend to estabIish a true presurnption in the technical sense, shifting burdens of production or proof. Nor would such a burden be appropriate as a rnethod of determining the affirmative defence of fair use.") cornrnerciality would tend to weigh in favour of the plaintiff6. Indeed, the Court stressed throughout its judgement the need to avoid rigid. bnght-line rules and tsvo-dimensional distinctions in favour of 'equitable rule of reason' analysis5'. As such, there is much to advocate against the interpretation of Say- as creating a presumption against fair use where there has been commercial gain. The spirit of the Soigr decision as a whole, the plain wording of section 107 and its cornrnon Iaw backgroundss and, most importantly, the nature of fair use in general, al1 advocate against an approach to fair use that resorts to the simplistic use of presumptions. The Sony case was also widely believed to have created a presumption with regard to the fourth statutory factor, "the effect of the use on the potential market". In its analysis of this factor the court stated that: "What is necessary is a showing by a preponderance of the evidence that some meaningfd likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood rnust be dem~nstrated."'~ This statement is extremely problematic. Although the language is permissive as opposed to mandatory and the comment, once again, is only dictum, the statement is directly 56 Supra- note 48, at 448-9: "Altlzorrgirnot conclr~sive.the first factor requires that 'the commercial or non- profit character of an activity' be weiglred in any fair use decision" [emphasis added]. The Court quoted from a House Report stating that commercial nature "can and should be weighed along ividi otl~erfacrors" (H.R. Rep. No. 94- 1476, 941h Cong., 2d Sess. 66 (1976)) [emphasis added]. 57 Supra. note 48, at 448-449 and n.3 1 ; and at 455,n.40- 5S See Jessica Litman, Copyright. Conzpronlise and Legislative History. 72 Cornell L.J. 857 ( 1987), at 897- S. Litman notes that the presumptions aniculated in the Sorzy case were the Court's own invention and were not dexived from any prior case la\\.. Indeed, almost dlfair use cases before 1976 involved commercial uses. Historically, fair use had consistently been applied to works involving commercial use or purpose; see e.g. Eiseirscliirnl v Farvcert Publicarions. 246 F.ld 598 at 604 (7'h CC.), cerf.De~tied. 355 U.S. 907 ( 1957) (regarding alleged infringement of copyright in books dealing with Lincoln's death). It has also been noted that the legislative history of the 1976 Act irnplies an intention to protect fair use from the operation of legal presumptions, Harper CG ROW Pub. Inc. v Narion Enterprises, supra. note 39, at 56 1 : invoked with reference to an analysis of burdens of proof under the fourth factor6'. If this is the intended effect, however, it makes little sense. Even on solely economic terms, there is no tzecessajy connection between the commercial gain of the user and harm to the market for the original. In parody cases, for instance, the markets of the original and secondary work are extremely unlikely to collide. Nor indeed is there any reason why non-profit works are significantly lsss likely to usurp the market for the original than commercia1 works- Furthermore, the presumption of harm to the original market makes comrnerciality the single most powerfil factor in fair use. Defendants anticipating commercial gain wouId be virtually unable to escape a finding of copyright infkingement. As Patry and Perlmutter note, the fourth factor presumption has the effect of collapsing the fourth factor into the first6', creating a trap from which the defendants are unlikely to emerge unscathed by a finding of infringement. The Court's apparent reformulation of fair use in Soq~has limited the doctrine's applicability in connection with commercial uses, thereby seriously restricting the flexibility that was intended to be the defining feature of section 107 and tilting the doctrine in favour of copyright owners6'. There is no justification in case ~aw~~or in the plain meaning of section 107 for according sucb primary importance "[The drafiers] resisted pressures from special interest groups to create presumptive categories of fair use" (quoted by Patry and Perlrnutter, supra note 24, at 702 n. 157)- Supra- note 48, at 45 1. uci Patry and Perlmutter, Fair Use MrSconstrued, stlpru. note 24, at 70. 6 I Id. at 70. 61 Litman, Legislarive History, supra. note 58, at 899. 63 See, e.g., the important case of Rosemonr Enrerprises v Random House, Otc., 366 F.7d 303 (zndCir.), cerr. deriied, 385 US- 1009 (L967). In this case, cornniercial motive was relegated to irrelevance as long as the use was in the public interest: "whether an author or publisher has a commercial motive or writes in a popular style is irrelevant to a determination of whether a particuIar use of copyrighted rnaterial in a work which offers some benefit to the pubIic constitutes fair use", at 307. See aiso 7heItzc. Y Bertzard Geis NOTE TO USERS Page(s) not included in the original manuscript are unavailable from the author or university. The manuscript was microfilmed as received. 142 This is reproduction is the best copy available "The cmx of the profit/nonprofit distinction is not whether the sole motive is monetary sain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price".67 The court thus rejected the Rosenzortt interpretation of 'commercial purpose', which had involved an analysis of the public benefit in the secondary ~ork~~.Moreover. it established that the Sony presurnption against commercial purposes applied even when the use was one explicitly mentioned in the statute as an example of fair use: the court refüsed to find that 'news reporting' was a fair use principally because the defendant stood to profit hmits 'exploitation' of the rnem~irs~~. This definition of cornrnerciality holds a certain threat. First, as a matter of definition, wherever the fair use defence has been brought into play there has necessarily been a pt-inia facie infringernent of the copyright owner's nghts. As such there has always been a use for which, in theory at least, the defendant could have obtained a license and so paid 'the customary price'. Second, it is clear that almost al1 uses of copyrighted material will be for the purpose of obtaining profit. Thus, if 'cornmerciality' is understood to rest on this definition, and, especially, if the Sony presumption against commercial purpose prevails, then there is a serious danger that commercial gain could preclude resolution of the first factor in the defendant's favour. ($1 Gary L. Francione, Facitzg ttze Nation, supra. note 54, at 539. Francione criticises that Harper & Rorv coun for having "placed the cure-al1 of fair use in a very small bottle" (at 522) 67 Supra. note 39, at 562. See supra. note 63. 69 Gary L. Francione, Facing the Narion, supra- note 54, at 550. But see id. n 173: Francione notes that the coun may have intended the term 'expIoitation' to have a normative content, thus distinguishing it from It ist however, with respect to the fourth factor that the Harpei- & Rotr decision has proved most troubling. This is the result, not of the Hrrrper & Roiï decision as a whole. but of the one isolated staternent that, again, has been heavily relied upon in subsequent case law70, narnely, the court's characterisation of the fourth factor as "undoubtedly the single most important element of fair useH7'.This elevation of the founh factor finds no justification in the statutory language of Section 107, and is capable of seriously distoning the fair use inquiry. This is especially mie given the tendency of the courts to simpliQ the fourth factor inquiry into an all-or-nothing question: either the use will harm the original's market (no matter how negligible the harm or how distant and unlikely the potential market) or it will not. fc) The 'Double Whanzmv ': Sonv and Harper & Row As a consequence of this statement, the Soit> and Ha~per-& ROW decisions have been described as a "double whamrny" for commercial uses7'. Taken together they are capable of effectively truncating the fair use inquiry and, in practice, of dictating the result of mere 'appropriation'. As such the profit/nonprofit distinction would mm on more than simply whether the user 'stands to profit' from the use. 70 Patry and Perlmuner observe that the phrase has since been quoted or paraphrased in almost every fair use case; Fair Use Misconstnred. supra. note 24, at 694, n l 1 8 (citinç as examples: Arica Itzst.. Ittv. v Poltwr, 970 F.2d 1O67 at 1O78 (z"~Cir- 1992); Los Angeles News Sen. v fido. 973 F.2d 79 1 at 798 (91h Cir. 1992); Cuble/Home Cornmunicariotz Corp. v. Nenvork Prods.. Itzc., 902 F.2d 829 at 845 (1 1'"ir. 1990)). 7 1 Supra. note 39, at 566, citing Nimmer, supra. note 42, 5 13.05[A] at 13-76 (1 985). Notably, no other authority for the proposition was cited, and arguably the case law used by Nimmer to substantiate this claim appears not to support his conclusion: e.g. Triatigle Publications. Inc. v Ktzighr-RidderNervspapers. k.,supra- note 26, at 1174, which States rnerely that courts "generally" Iiad placed "more emphasis" upon the fourth factor; Public ADirs Assoc-s v Rickover, 284 F.2d 262 (D.C. Cir. 1960), which was decided on the ground of amount taken under the third factor, and did not even mention harm to the market. Nimmer also cited a number of cases contradicting his conclusion: Loew's. Inc. v Colronbia Broadcasritzg Svsterri. Inc. 133 1 F. Supp. 165 (S.D. Cal. 1955); Associared iifusic Pub.. Itic. v Debs Metnorial Radio Ftuzd itzc. 141 F.2s 852 (Yd Cir, 1944); Tortlmin v Rike-Krrmler- Co,, 137 U.S.P.Q. 533 (S.D. Ohio 1962). See Patry and Perlmutter, Fair Use kiiscotzsrnled, supra. note 24. at n 127 and n 128 and accompanying text. '' Id. at 706-8- most fair use cases in favour of the copyright owner. Followin~Sony, where the defendant's use is commercial, it is presurnptively unfair and presumptively leads to ham of the potential market for the original. Following Harper v Rour, harm to the potential market is the single most important factor in the fair use inquiry. In baiance, then. the defendant's use is highly unlikely to be a fair use. As such, a commercial purpose almost automatically disqualifies the use fi-om the fair use defence nomithstanding that commercial nature of the use is only one element of one factor in section 107. ii) The Conseqzrences of Over--Enrphasisin,a Ecarronric Inrer-esrs 1 undertook the above discussion of Sony and Harper & Row with the aim of illustrating some crucial misunderstandings that have surrounded section 107 in the courts. As we shall see, the importance of the Supreme Court's pronouncements in these cases has since been minimised by its seminal judgement in the case of Acr&Rose Music. IJZC.v ~ai?i~bell'~.However, the Sony and Haiper & Row decisions reveal a danger inherent in the U.S. formulation of fair use, and so should not be overlooked in a comparative assessrnent of the American law. Not least because similar dangers would likely present themselves in a British or Canadian context if the American legislative mode1 were adopted. The American case law on fair use is suggestive of a judicial tendency to establish bright- line rules, evolved from in-built biases or assumptions, in the face of a broad provision conferring a general discretion. The opportiinity for biased evaluation in the context of such discretion is troubling, and the development of mechanistic rules is less a cure than it is a perpetuation of the problem. I have indicated that, while it is flexibility that gives section 107 its strength, this flexibility also entails certain risks. In the US. context a fear of indeterminacy and a reluctance to engage in cornplex policy-based analysis has resulted in an overemphasis upon comrnerciality that has the potential to seriously weaken the fair use defence. The focus upon cornmerciality is more than just a random fixation upon one factor at the expense of others for the purposes of simplification or rnaximising predictability. Rather, in my opinion, this aspect of the fair use inquiry has corne to be overemphasised because of the dominant mischaracterization of copyright law that presently pervades Arnerican copyright discoune. I refer to the mistaken conceptualisation of copyright as somehow fundamentally concerned with the economic interests of the author. By rnisaligning copyright with the protection of the author's economic interests. the judiciary came close to circumventing the fair use doctrine in any case where a use was made for commercial gain. The original intent behind fair use, however, was not concemed with protecting the commercial interests of the original author, but rather with ensuring that these interests are not allowed to impinge upon the public benefit, derived from creativity, upon which the copyright system was based. If the economic interests of the copyright owner were to outweigh al1 other considerations in the fair use inquiry, this would fatally undercut the doctrine, rendering it practically meaningless. The incorporation of a general principle continuing the common law development of fair use, and designed to protect uses for which the copyright owner could have issued a license, is evidence enough that section 107 was not designed around the copyright holder's economic interests as a primary consideration. Moreover. this is not simply because fair use is an esceprion to the general copyright scheme, but because the economic interests of the copyright owner are not a prinrary consideration in the copyright system as a whole. If we recognise that this system is no more than the mechanisrn chosen in order to create the incentive structure intended to benefit society, it becomes ciear that fair use furthers. as opposed to derogates from, the general copyright scheme. This characterisation of copyright is inherent in Seltzer's vision of the author-as-instrument". 1 have already expressed my misgivings concerning the comrnon characterisation of US. copyright law as a mechanism for balatrcitlg the economic interests of the copyright owner with the interests of society in the access to and dissemination of creative works. 1 believe that the Sony and Havper & Row decisions and their elevation of commercial considerations are evidence of the flaws that inhere in this vision of copyright and the dangers that may stem fiom it. The notion of cornpeting interests requires that, at any moment where interests collide, a decision is made asserting the pnmacy of one set of interests over the other. In a society defined largely by its market economy and capitalist structure, there is a serious risk that the economic interests of the copyright owner will always be found to prevail over the more nebulous and less tangible interests of society at large. The prioritisation of economic considerations is therefore clearly capable of defeating the very prernises upon which copyright policy is based. 74 See supra., section 1. A. This is a subtle trap. US. copyright law is an explicitly utilitarian construct and, unlike that of the U.K. and Canada, is generally recognised as such. However, an over-reliance upon economic analysis, which is itself usually regarded as utilitarian, in fact detracts fkom the goals of the copyright system. Failure to identiQ this risk is arguably the result of a failure to distinguish between iitilitarianism and rights-based economic utilitarianism. Where this distinction soes unnoticed utilitarianism can easily slide into economics, and many important considerations will be overlooked in the process. As a result simply of the nature of copyright and, in particular, its use of economic incentive to attain its policy goals, economic analysis in general is likely always to focus upon the economic interests of the author. Once again, then, we are faced with an author-oriented conception of copyright law, which means a departure from the author-as-instrument theory and a retum to the vision of the author as direct beneficiary of the copyright scheme. Where the public is relegated to the role of indirect beneficiary, the fair use doctrine necessarily loses much of its strength. When commerciaiism is allowed to supplant other factors of consideration in the fair use inquiry - as it was in Sony, Harper & Rolr* and many of the cases that subsequently followed suit - there is a serious distortion of the fair use doctrine and, consequently, a subtle but powerfbl distortion of copyright law. This elevation of the economic interests of the author is the result of a failure to sufficiently acknowledge the policy underlying copyright and the role of the author-as-instrument in the furtherance of public benefit. The consequence of the departure fiom underlying policy is the gradua1 narrowing of the fair use defence: where copyright is understood primarily as a means of protecting the economic interests of the copyri_oht holder. the policy motivations underlyin_o fair use corne to be regarded as conflicting with those of copyright pei- se. Fair use is therefore relegated to the position of a marginal construct, a derogation from general copyright policy with limited application. Ultimately, then, notwithstanding the utilitarian philosophy that pervades US. copyright law, the elevation of commercial concems returns us to an author-oriented vision of copyright. By elevating either proprietary or economic concerns over public interest, we strengthen the daims of copy*ht owners at the expense of society. III. The Advantaees of the US Mode1 A. Room for Reasoned Analvsis The above discussion highlights the potential shortfalls of the US. fair use provision. These shortfalls emerge where the fair use inquiry is based upon a mistaken over- emphasis of one factor at the expense of others, and where the courts seek to create bright-line rules to govem their inquiry. As such, these shortfalls are evidence of the threat presented by misguided analysis, which is, in tum, the result of misunderstanding the philosophical bases and policy airns of the copyright scherne. This criticism, however, goes to the heart of the judicial approach to fair dealing and copyright, as opposed to the substance of section 107 itself. 1 have argued that the US. fair use provision is better equipped to embrace the fair use doctrine than the corresponding British or Canadian provisions. I believe that, despite some past mistakes that may have put the benefits of the US. legislation in doubt, there is evidence to support this claim. While a section 107 analysis. like any copyrÎght analysis, is open to distortion at the hands of misplaced notions of property or economic right, it has the distinct benefit of conferring upon the court sufficient room for reasoned analysis. That is to Say, under section 107, it is possible for the court to analyse a fair use case in a marner that is cognisant of, and consistent with, the principles and policies behind the copyright system. The court is thus free to determine a question of fair use in a way that maximises the probability that the social purposes behind the copyright system are achieved. An example of the benefits presented by the Amencan law can be found in the Acrff-Rose decision''. B. An Illustration: Campbell v Actrff-RoseMuic, 1nc.76 The case concerned the parodic use of the famous Roy Orbison Song, Pi-eth Wonznit, by rap group 2 Live Crew. The judgement of the Sixth subsequently appealed and reversed by the Supreme Court, was a prime example of the flaws that had emerged in 75 The approach taken by the Suprerne Court in rlcuff-Rose has been commended as following the lead of the Second Circuit in the case of Atnericatz Geophysical Uiiotz v T'aco Inc., 802 F.Supp, 1 (S-D.N.Y. 1992), ard 37 F.3d 88 1 (2nd Cir. 1994). An interesting discussion of this case and its relation to Aclrfl- Rose can be found in Goldberg, Multimedia Teclrtlolop, szipra- note 34, at 945-52. In this case, the court, having examined the historicaI development of fair use, emphasised the need to focus upon the 'productive' use of the secondary work, that is, whether the use 'transformed' the original. Having considered al1 four factors in its analysis, the district and circuit courts arrived at the conclusion that defendant's practice of photocopying articles from scientific joumals for primarily archiva1 purposes couId not corne within the fair use defence. The principal reason for this conclusion was that there existed an easy and reasonable way to Iicense copies. The courts' means of analysis and, indeed, their conclusion clearly shares the spirit of the AcuflRose decision. The avaiIability of reasonable Iicensing arrangements is directly related to an examination of the extent to which the public will suffer if the use is not allowed: the public could easily be given access to the same work through the Iicensing mechanism. There is therefore no nerd to undennine the incentive system put in place by the copyright system because that system is not infringing upon the benefit to be gained by the pubIic. What is most important about the Teraco judgernent, however, is the way in which the courts esamined each factor in the iight of the purposes of copyright and fair use, and weighed these factors together in order to reach their decision. Their approach was thus in accordance with the statutory formulation of the fair use provision, and with the purposes underlying fair use and copyright. 76 Supra note 73. the fair use provision as a resuIt of its decisions in Harper CC Row and So~ry.The Sixth Circuit overruled the district court's finding that 3 Lri~eCrerr. was entitled to the fair use defence7' on the basis that: "[Tlhe district court placed insufficient emphasis on the command of Har-per & Rotv, wherein the Supreme Court expressly reaffirrned its earlier holding that '[Elvery commercial use of copyrighted material is presurnptively.. .un fair.. .' .. .[T]he admittedly commercial nature of the derivative work - the pzupose of the work being no less important than its chai-acter in the Act's formulation - requires the conclusion that the first factor weighs against a finding of fair use."79 Thus the commerciality of the hurnorous parody IargeIy dictated the Sixth's Circuit's decision to reject fair use, notwithstanding the wide recognition of the social value of parody in American copyright jurisprudenceg0. Relying upon the presurnption against commerciaI works, the court refused to take the district court's approach of according significant weight to the parodic character of the work within the first factor inquiry. In regard to the fourth factor, having declared it the "single rnost important element"sl, the court then when on to find that, based upon the Sony presumption, the commerciality of the parody meant that fuîure hmto the original's market could be presumeds'. The presumption was therefore regarded as sufficient to debunk the accurate observations of the district court that the rap parody would amact an entirely different audience than the original work. As such, a common sense or practical analysis of the actual interplay of '7 972 F.2d 1429 (6th Cir. 1992). 754 F. Supp. 826 (S.D.N.Y. 1990). 7') Supra. note 77, at 1436-37 (Emphasis in originaI; citations omitted). YU E-g. Rogers v Koons, 960 F2d 30 1 (2nd Cir.) at 3 1 O: "[Plarody and satire are valued forms of criticism, encouraged because this son of criticisrn itself fosters the creativity protected by the copyright law". See aIso Beuh v E-C.Publicarions. Inc., 329 F.2d 541 (2nd Cir) at 545: "[AIS a çcneral proposition, we believe that parody and satire are deserving of substaiitial freedom - both as entertainment and as a form of social and literary criticism." See, in general, Patry and PerImutter, Fair Use Misconstnted. supra, note 24, at 708- 14. ''Supra. note 77, at 1437. the markets of the first and secondas. works was obviated by the court, which instead displayed a blind adherence to mechanical presurnptions and a total disregard of policy. It is clear, then, that the above criticism of the Halper Q ROH?and SOI?.cases is not simply a minor conceptual point. but rather is concemed with serious practical damage that can result from this conceptual error. The elevation of commerciality can make the difference between infnngement and fair use. The turn-around executed by the Supreme Coun on appeal is cvidence of the dramatic impact that an alternative approach can have on the application of fair use; by rejecting mechanical presurnptions and focusing on the policy considerations underlying the doctrine, the court was able to reach an entirely opposite conclusion and permit the parody to escape a finding of infnngernent. Thus the Supreme Court successfully 'undid' some of the damage done by its previous fair use decisions. The court found that the Sixth Circuit had wrongfully "inflated the ~i~nificance"~~of the parody's commercial nature and erred by giving this aspect of its nature "dispositive ~ei~ht"~'.It went on to state that: "The language of the statute makrs clear that the commercial or nonprotit educational purpose of a work is only one element of the first factor enquiry.. . If cornmerciality carried presumptive force against a finding of faimess, the presumption would swallow nearly al1 of the illustrative uses listed in the preamble paragraph of 5 10%"~~ -- '' Id. at 1438. Indeed, the Sixth Circuit criticised the district court for having "refused to indulçe the presumption" (Id. at 1439). s3 1 l4 S-Ct. (1994) at 1173 Id. at 1 174. ss Id. The court thereby departed from the notion of a presumption against commercial uses, clearly recoyising that such a presumption was antithetical to the fair use doctrine and contrary to the wording of section 107'~. The court also appears to have recognised that the presumption is counterintuitive; it has the power to pre-empt the analysis required 5y the fair use provisions and to lead ro a result othenvise unjustified under the statute. This statement was therefore an effective exercise in 'damage control' for which users of copyrighted work should be thankful. Act@-Rose is also an important decision because it expressly articulates the intent behind the fair use doctrine and the way in which it should be understood and applied: an articulation that has been missing from British and Canadian jurisprudence, and which. in US. jurisprudence, had become clouded arnidst the confusing discourse of commerciaiism. The court begins its analysis of parody by reaffirmins that: "parody, like any other relevant use, has to work its way though the relevant factors and be judged case by case, ia lighl of rhe ends of copyrigit~law."'' This statement departs from the previous judgements by shifting the ernphasis away from the copyright owner (where it tends to reside in the context of cornmerciaI considerations) and returning the focus to the public interes: that represents the goal of copyriglit. The court then reiterated the need for a *' The court also opined that a presumption against cornmercizlity could not be inferred from the ccmmon- law doctrine prior to 1976. The court quoted Samuel Johnson's words, saying that "[nlo man but a blockhead ever wrote, except for money." (3 Boswell's Life of Johnson 19 (G. Hill ed- 1934))-Id. at 1 174. s7 Id. at 1 172 (Emphasis added). '-sensitive balancing of interestsWssand "eschewed a rigid, bright-line approach to fair use"89- The court proceeded to analyse each of the four factors in mm, frequently stressing the importance of the substiturability of the works. In relation to the first factor, the court observed that the heart of the parodist's claim was the use of a prier work "to create a rzew orle that, at least in part, cornrnents on that [work~"~~.The court identified the central purpose of the first factor inquiry as being to establish "whether the new work ... adds somerhing new, with a fürther purpose or different character, altering the first with irew e.rpi-ession. rneaning or Regarding the third factor9', 'the arnount and substantiality of the portion used', the court emphasised the need to consider whether the secondary work is "likely to be a nzerely srrperseding use, fulfilling the demand for the originalmg3.The reasonableness of the amount taken was said to depend upon, for example, "the likelihood that the parody may serve as a rriarlier srtbstitrite for the original"g4. In its fourth factor inquiry, the court opined that it would be an error to apply a presumption of market harm in this case; such a presumption was held to be insupportable in any case involving somethiiig "beyond mer-e drrpiicariorz for commercial 58 Id at 1 174: quoting 464 U.S.,at 455, n.40. S') Id. quoting frorn Sony, supra. note 48, at 449, n. 3 1. The court asserted on this basis that "The Court of Appeals's elevation of one sentence frorn Sony to aprrse rule thus mns as much counter to Soty itself as to the long comrnon-law tradition of fair use adjudication" (id.). 90 Id. at 1 1 72. (Emphasis added) '" Id ar 1 17 1. (Emphasis added) '" The court gave little consideration to the third factor on the basis that it is "[not] ever likely to help much in separating the fair use sheep from the infringing goats in a parody case, since parodies almost invariably copy publicly known, expressive works". Id. at 1 175. " Id. at 1 1 76. (Emphasis added) 94 Id. The court remanded evaluation of the amount taken, requiring that such evaIuation be made "in light of the sang's parodic purpose and character, its tratzsjorn~ativeelements, and considerations of the potential for market strbstitrition. .-"Id. at I 177. (Emphasis added) purposes"g5. The court went on to hold that. in the case of transfomative uses. and parody especially. "it is more likely that the new work will not affect the market for the original in a way cognizable under this factor, that is, @. actirig as a slrbsriture for itWg6. This reasoned analysis of the four factors led the court to conclude that the Sisth Circuit had erred in its decision to exchde 2 Live Crerv's parody from section 107 protection. The reasoned judgement makes it clear that the court undertook this analysis in the light of the purpose of copyright law and the purpose behind the fair use doctrine. The court described the fair use doctrine as offering a "guarantee of breathing space within the confines of and made it clear that this 'breathing space' was '.necessary to fulfil copyright's very purpose"98. The court thus focused, throughout its judgement, on the need to estabiish whether the contested work was a new work. The vocabulary of substitutability, duplication and supercession are al1 facets of a general concern with the identity of the second work as something 'new'. The effect of the Acrrff-Rose decision, then, has been to re-establish the importance of exarnining the contribution that the defendant's work has made to the public wealth of creative works. If a work contributes sornething new to the public, then it furthers the goals at the heart of the copyright systern. The fair use doctrine shares these goals. As such, the essence of the fair use inquiry is the evaluation of the public benefit derivable from a secondary work, and whether the benefit is such as to override -- - - 9 5 Id. (Emphasis added). "'id. (Emphasis added). "'id. at 1171. "'Id. at 1 169. the general incentive system that copyri_jht has put in place. This places the US. fair use provision, as it was understood in the Acrrff-Rose case, firrnly within the original rationale behind the emergence of the fair use doctrine in eighteenth century England. It follows that section 107 is placed firmly within the rationale behind copyright in general. It seems, then, that the analysis undertaken by the Supreme Court in the Acz&Rose case successfully realigned section 107 with the policies behind copyright and fair use. and with their historïcal development. The decision serves as an illustration of the potential of the Amencan fair use provision. When left fiee of technical presumptions and the unjustifiable elevation of some factors over others - the results of mischaracterizing the copyright system in terms of author-rights - section 107 is capable obuiding a court through a reasoned and principled analysis of fair use that remains true to its fûnction and foundations. V. Conclusions on the U.S. Mode1 A. The Benefits of Section 107 The above examination of section 107 in the Supreme Court raises three important points. The first point concerns the benefits offered by the American fair use provisions. Clearly, it is helpful, when criticising the British and Canadian fair dealing provisions to look to the Arnerican statutory formulation of fair use for direction. In many ways, the American law unmistakably highlights the limitations of the fair dealing defence in the U.K. and Canada. Some US. cornmentators have bemoaned the overemphasis often given by the courts to the listed examples of fair uses in section 107~~;a tendency that stems from a reluctance to understand the provision as simply providing guidance for continuation of cornmon-Iaw reasoning. How much more problematic, then, is the presence of listed purposes in U.K. and Canadian Iegislation. where the list is eshaustive and not rnerely illustrative? The list is not simply overemphasised: rather, it is appIied to the exclusion of al1 other uses, be they -fair' or not. If we have an adequate understanding of the intent behind fair use, and its role in the copyright system, we must perceive the Nzadequacy of an approach that excludes al1 but the listed purposes from the fair use analysis. The restrictive nature of the British and Canadian provisions has thereby prevented the courts fiom entertaining a fair dealing defence in a way that is cognisant of the historical and underlying rationale behind the doctrine. Thus, it is not open to the U.K. and Canadian courts to undertake an analysis or reach a concIusion such as that achieved by the U.S. Supreme Court in Aczrff-Rose, In other words, the fair dealing inquiry does not allow the careh1 weighing of different factors of consideration in order to evaluate the worth of the secondary work to the public in the light of the purposes of copyright law. Consider, Say, the way in which a British or Canadian court would encounter difficulty even bnnging parody within the purposes of the provisions or overcoming the hurdle created by the sufficient acknowledgement requirement. Add to this the likelihood that a British or Canadian court will interpret 'faimess' narrowly, even afier these initial hurdles are overcome, because, where intelIectua1 property is perceived as an absolute or 99 Goldberg, Mztltimedia Techno!ogy, supra. note 44, at 942; see also, Patry and Perlrnutter, Fair Use 157 natural proprietary right, the unlicensed use of it is highly unlikely to be considered -fair'. B. US- Fair Use Within Copvrieht Philosophv The Arnerican jurisprudence illustrates the import of the limitations imposed upon the courts by the fair dealing provisions in British and Canadian copyright Iaw. This is one important point. However, the second point that can be made regarding American mode1 concems its express recognition of fair use as pari of the general copyright scheme; the fair dealing inquiry must be undertaken "in light of the purposes of copyright Iaw". This stands in stark contrast to the British and Canadian characterisation of fair dealing as a limited exception, to be restricrively applied. This charactensation results from a failure to adequately recognise the purposes of copyright, and so to situate fair dealing within these purposes. It is, then, the consequence of a mistaken focus upon the property rights of the copyright owner and the concomitant rnarginalisation of public interest concerns. We have, however, seen that simiIar conceptual errors can occur in the American context. The mistaken focus upon cornmerciality - and so upon the economic interests of the copyright owner - was also capable of marginalising those public interest concems that copyright wzs intended to further, and that fair use was intended to protect. The failure to adequately acknowledge the importance of this social purpose over the individual economic position of the copyright holder was responsible for skewing the purposes behind fair use, and those behind copyright in general. As Ray Patterson explains: Miscorrstrued, supra. note 24, at 670-1. 158 "Copyright has both a purpose and a function. The purpose is to promote leaming; the function is to protect the author's economic interest. The fùnction? however, must serve the purpose and not vice versa. *,IO0 Thus, at the moment when the purpose begins to senre the function - as it does when the author's economic interests are placed over the copyright's public policy - public interest considerations begin ro fa11 away. The third point that emerges from this analysis of the Amencan model, then, is the need to recognise that a change in the British and Canadian fair dealing provisions may not be enough, in itself. to rescue fair dealing. C. A Solution? Simply by adopting an Arnerican statutory model for fair dealing, British or Canadian users of copyrighted work could not be guaranteed a satisfactory judicial approach to the defence. While section 107 of the U.S. Copyright Act may permit, or perhaps even facilitate, a fair use inquiry that is reflective of the intent behind the doctrine and its importance withirz copyright policy, it in no way guarantees it. The British and Canadian courts would likely use their broad discretion to perpetuate their present understanding of copyright and fair use. As such, there would always be the possibility of judicial overemphasis upon certain purposes or certain factors, development of hard niles conceming the devaluation of another's property, or sirnply the restrictive interpretation of the new provisions. After all, a broad discretion does not necessarily entai1 a broad interpretation: in recognition of the wide copyright protection presently conferred upon plaintiffs in British and Canadian infnngement actions, it is likely that such discretion - 100 Ray Patterson, Fair Speech. supra. note 1 1, at 46, note 150. 159 would translate into a restrictive application of fair use, The author-oriented philosophical approach to copyright Iaw is well in-gained into the judicial psyche, and so we must recognise that it is unlikely to dissipate simply because a wider discretion is conferred. Indeed. by confemng this discretion, we might risk the possibility that it be used to perpetuate and compound the current misconceptions surrounding copyright law. 1 believe, however, that, having exarnined British, Canadian and American approaches to fair use, a Iegislative overhaul of the fair dealing provisions in the U.K. and Canadian legislation is clearly much needed- The courts of these junsdictions would not then be precluded, by the statutory formulation of fair dealing, from considering the applicability of the fair dealing defence to al1 uses of copyigh'ed material that are fair, reasonable and in the public interest: limited purposes, required acknowIedgements and so forth, need not get in the way of a comprehensive and principled fair dealing inquiry. However, 1 must stress that something more than just simpIe Iegislative revision is required here. What is required, above al1 else, is a reconceptualisation of copyright. We need to re-establish a concept of copyright that exists in instrumental terms, that allows recognition of the underlying public policy and goals of copyright. This would aIIow a departure from the virtually absolutist approach to intellectual property nghts that continues to dominate British and Canadian copyright jurisprudence. It would therefore entai1 the return to a prapatic and purposive approach to copyright; an approach that is so much more hospitable to the paramountcy of public interest considerations in general, and to the fair dealing doctrine in particular. 1 hope that 1 have made clear the conceptual damage that is done when copyri_eht is misrecopised as a law whose purpose is to protect either the property rights or the economic interests of copyright holders. Ir should also be clear that this conceptual damage has S~~OUSpractical implications. It is al1 very well to Say that Britain and Canada have failed to recognise the role of fair dealing within the underlying purposes and policies of copyright. but this criticisin will only assume some relevance if the purposes and policies of copyright are correctly identified. Fair dealing and, indeed, fair use, have suffered at the hands of a general reluctance or inability to correctly identiQ these purposes. It is at this stage that the conceptual damage is done. In the next chapter, then, I will discuss the misidentification of these purposes and the inappropriateness of the underlying philosophical assumptions responsible for them. NOTE TO USERS Page(s) not included in the original manuscript are unavailable from the author or university. The manuscript was microfilmed as received. 162 This is reproduction is the best copy available UMI CHAPTER 5: THE MISTAKEN PHILOSOPHIES OF COPYRIGHT PROTECTION 1. Introduction: The Problem of Copvright Rhetoric In the course of the precedins chapters 1 have presented an analysis of the historical development of copyright protection and the fair dealing defence, and have discussed the present state of the law in Britain, Canada and, by means of cornparison, the United States. In the case of each jurisdiction, 1 have suggested that the scope of protection for original creative works has been too widely drawn, and that there has been a correlative tendency towards an unsatisfactorily narrow interpretation and application of the fair dealing or fair use doctrines. C have argued that there are serious flaws in the fair dealing provisions of both the UK and Canada, but 1 have also suggested, with reference to the US law, that legislative change is a necessary but nor a srlfficient means by which to ensure that the fair dealing doctrine achieves its required strength and scope. What is needed above al1 is a departure from author-oriented reasoning and a move towards principled and firnctional analysis of copyright protection and fair dealing. This theoretical shift would involve re-understanding copyright in insmrnentalist terms, thereby rejecting cornrnon notions of natural and moral entitlernent . 1 have undertaken much of rny discussion so far within the confines of the common discourse of copyright law, thereby adopting as appropriate traditional copyright rhetoric and so many of the prevailing assumptions that underlie this rhetoric. The aim of my discussion, however, has been to reveal the inadequacy of the took of analysis currently used to resolve copyright questions, and the distortative effect of the discourse that is invanably employed in the search for answers to these questions. In this chapter, then. 1 intend to draw attention to the pervasiveness of copyri,oht's rhetorical assurnptions. It will be my submission that copyright dogma and the semantics of copyright discourse rnisrecognise the doctrinal tenets of the law and so senously underrnine the justifiability of copyright as a functional construct. Copyright doctrine, thus cast, is the product of multiple tropes that operate to occIude proper analysis of the goals of copyright, and that, together, facilitate or ensure the consistent expansion of copyri,oht protection, and the extension of the powers of copyright owners. As such, to discredit the philosophic assumptions underlying copyright law is not simply to undertake a project of deconstruction; 1 hope to show that, by identifLing the myths inhering within current copyright doctrine, it is possible to recast our understanding of copyright's place and function in modern cultural society, and so to refocus Our analyses on the societal goals upon which the justifiability of copyright depends. To this end, chapter 5 will examine what 1 regard to be the two major elernents of prevaihg copyright philosophy: first, the vision of romantic authorship and the convergent concepts of 'originality' and the fkee-standing autonomous 'work'; and second, the theory of natural rights and private property. mile 1 will discuss each position separately, it is important to note that these philosophies are not discrete approaches to the copyright question, but rather are mutually facilitative, and arguably, mutually dependent. As ideal types their individual bases and theoreticaI aspirations are worthy of distinction, yet it ought to be borne in rnind that, pragmatically and strategicall>-. these philosophical approaches demand consideration in unison, not isolation. This esamination will seek to reveal the force exerted by these philosophic approaches upon copyright reasoning, the effect of their interaction, and the rnanner in which they combine to influence, ofien subconsciously and sometimes ovenly, Our understanding of the nature of copyright. Ultimately, their influence culminates in the overprotection of copyrightable 'works' and in the rnarginalisation of fair dealing. II. The Vision of Romantic Authorship A. 'Authorship'. 'Orieination'. and 'Obiectification' In his seminal essay, 'mat 1s an Author?', Michel Foucault observed that "it would be worth examining how the author became individualised in a culture like ours ... and how this fundamental category of 'the-man-and-his-work' began."' This challenge has been taken up most notably by Martha Woodmansee and Mark Rose, both of whorn have produced important texts on the development of the modem concept of authorship in eighteenth century Gerrnany and England respectively2. ' Miche1 Foucault, Whar 1s an Artthor?, in The Fo~rcarritReader, Pau1 Rabinov ed. ( 1984) at 10 1. ' See Woodmansee, The Geni~tsand the Copyright: Econonzic and Legal Cotzdiriorts of rlle Etnergence OJ* the ;?rrtkor ', 17 Eighteenth-Century Studies 425; Woodrnansee, The Author, Arr attd the Market: Rertiuding rhe Hisro~tof Aesrherics. (1993);Woodmansee and Peter Jaszi (eds,), The Coristrricrion of Atrrhorship: Terrual Appropriarion itz Law and Lireraitwe (1994). also contained in 10 Cardozo Arts &r Ent. L. J. 277 ( 1992); Mark Rose, .4ttrhors and Oirwers: The I~zvertriorzof Copyrigftr ( 1993); Rose, The rltrriior as Proprieror: Donaldson v Becket ami the Gerzeolo~~of Modern Aurhorsjlrp, 23 Representations 5 1 ( 1988); Rose, The Atrrhor itt Court: Pope v Curl (173 1 ), 2 1 Cultural Critique 197 (1992)- See also MolIy Nesbitt, CVhat Was an Author?, 229 Yale French Studies 73 (1987); Carla Hesse, Enlightrttmenr Episrenzology and rhe Laws of Aurlzorship in Revolrtrioriar). France, 1777-1 793, 30 Representations 109 (1 990). These examinations reveal the extent to which the modem concept of the author as the sole independent creator of an original work is a profoundly ideological and historical one3. Through a process of contextualisation - locating modem concepts of assumed meaning within the 'worlds of significance' in which these meanings developed - recent scholarship has brought attention to "just how culturally specific and historically contingent such seemingly transparent tems actually are, and how complex the contexts in which they emerged, were contested, and gained legitimacy''4. If we set about reunderstanding the past behind the modem conception of authorship. then it will become possible to reimagine its future5. By anatomising the author and demythologising copyright doctrine, this recent body of academic literature has provided an important route towards the doctrinal reconfiguration of copyright law. i) The 'Author' In Chapter 1, I emphasised that present-day copyright law emerged from commercial struggles arnongst interested parties, occurring at a time- and context-specific locus in the process of cultural and economic development. It is against this historically contingent background that the connection between the romantic author and property theory becomes most evident. I do not pretend to offer here a comprehensive account of the See. for- example. Rosemary Coombe, The Properries of Culrure and the Polifics of Possessitig Idetir@: Narive Claims in the Culrural Appropriarion Corzrroversy, 6 Can. L. J. & Jurisprudence 249 (1993) at 285: "The range of Western beliefs that define intellectual and cultural property laws - that ideas can easily be separated from expressions. that expressions are the singular products of the individual minds of Romantic authors, and that these expressive works can be abstracted from the meaningful worlds in which they figure to circulate as the signs of unique personaIity.. . - are not universal values that express the full range of human possibility, but particular, interested fictions ...." '' Rosemary Coombe, Chaiiengitig Parernify: Histories of Copjv-ighr, 6 Yale Journal of Law & Human. 397 (1994) at 398. Peter Jaszi, Ot, rhe Author Eflecr: Conteinporary Copyright and Collective Creativiry. 10 Cardozo Arts & Ent. L. J. 293 (199 1/92), at 293. production of the modem representation of the author, but I do want to stress one aspect of this process that is highly reIevant for Our purposes. Woodmansee explains that the modern 'author' is: "a relatively recent invention. Specifically, it is the product of the rise in the eighteenth century of a new group of individuals: writers who sought to earn their livelihood from the sale of their writings to the new and rapidly expanding reading Woodmansee argues that the modem conception of authorship grew in Gennany from the discontent of writers who were unable to survive on writing alone, and who consequently sought to redefine the nature of wrÏting to ameliorate their (financial) position in society7. German theorists, elaborating upon the positions taken by English writers such as Edward Young and William ~ordsworth~,attempted to dislocate the notion of the witer "oodmansee. Tire Genizis arzd tlze Copyrigizr, srtpt-a. note 2. at 326. It should be noted that this explanation for the invention of the modern -author' in itself reveals the connection between the various philosophicaI positions that I intend to examine in this chapter: economic interests were furthered by the allocation of property rights, which were considered to be due largely as a result of this vision of the 'author' ' Id. Young. whose work proved far more influential in Germany than in England. descnbed an original work as: "of a vegetable nature; it nses spontaneousIy from the gound by vital root of genius; it grows, it is not made. Imitations are often a sort of manufacture wrought up by those rnechanics, art and labor. out of preexistent materiaIs not their own"; Cortjecntres on Original Conzposirion, in Edmund D. Jones, ed., Ettglish Criiical Essa~s:Si-creerrrh. Seventieth and Eigizteenth Centriries (London, O.U.P. 1975), at 274: quoted in Woodmansee, The Getliris and the Copyrighr, at 346). Rose notes, in connection with Young's assertions, that "the sense of the commodity value of ~~tingis often just beneath the surface of the eighteenth-century discussions of literary worth"; Arttlîors and Owners, supra. note 2, at 1 18. Young did indeed emphasise concepts of ownership, advising writers to "Thyself so reverence as to prefer the native growth of thy own rnind ... The man who so reverences himself, will soon find the world's reverence to follow his own. His works will stand distinguished; his the sole property of thern; which Property alone can confer the noble title of an Artthor"; Conjecnires, supra. at 289. Wordsworth also adhered to the notion of writer as author or originator: "Of genius the only proof is, the act of doing well what is worthy to be done and what was never done before.. . Genius is the introduction of a new element into the intellectual universe..."; Essay, S~ippletxeniai?;to rlze Preface, in Paul M ZaIl, ed.. Liierq. Criticism of William Wordsworth (Lincoln: Univ. of Nebraska Press, I966), at 182. It should be noted that Wordsworth was an important pIayer in the campaign for an extension of copyright duration in the lead up to the Copyright Act of 1842. In a letter dated 2 1 April 1819, Wordsworth questioned "why the laws should interfere to take away those pecuniary emoluments which are the natural Inheritance of the posterity of Authors?", quoted in Rose, Artrizors and Orvners, supra. note 2, at 1 10. It has been observed that Wordworth's "attitude towards his poems sometimes resembled that of a landowner towards his lands"; Susan Eilenberg, Mortal Pages: Wordsworth and the Refornz of Copyright (56 E.L-H 351 (1989)), quoted id. at 1 1 1. Noting that his as a master of niles or a receptacle of sublime inspiration. in favour of the concept of intemalised inspiration, or 'original genius'. The witer was thereby transformed into: "a unique individual uniquely responsible for a unique product. That is from a (mere) vehicle of preordained truths.. . the w-iter- becomes an mthor- (Lat. ancroi; originator, founder. ~reator)."~ ii) 'Or-igiizaliy' This vision of the author-as-onginator is firmly located within the very foundations of modem copyright law. The 'author' is defined by, and revered because of, the 'onginality' of his creation. Our veneration for the 'author' figure is thus dependent upon a concept (originality) that is, itself, no more than myth. Creative autonomy or -0nginaIity' is mythical or, at best, metaphoncal, because the act of wrïting involves not origination, but rather translation and recombination of 'raw material' taken from previously existing texts. In Jessica Litman's words, it is "a process of adapting. transforming, and recombining what is already 'out there' in some other form. This is not parasitism; it is the essence of a~thorshi~."'~Litman goes on to describe the 'creative' process as "a combination of absorption, astigrnatism, and amnesia."" As such, the notion of 'originality' that envisages the creation of something from nothing can be no more than a fiction. The aspiration towards 'originality' is not simply flawed in a descriptive sense, but is also prescriptively non-viable. Robert Rotstein considers one fundamental weakness of concem with copyright was ofien verging on the obsessive, Eilenberg suggests that some psychological factors may also have contributed to Wordworth's position. " Woodmansee, The Genius and the Copyright, supra. note 2, at 429. 'O Jessica Litman, The Public Dontain, 39 Emory L. J. 965 (1990) at 967. " Id. at 101 1. the concept to be the "practical impossibility" of independent creation: al1 texts are rzecessarily reproductions of other texts". This being the case, the myth of independent creation does no more than legitimise the attribution of value and worth to texts "that draw[] on a broad range of anonymous textual material over [texts] that draw[] only on identifiable sources.. .9-13 . What is a seemingly arbitrary determination of worth, then. has become the gold standard for copyrightability notwithstanding the mystical and mythical foundations upon which the concept of 'autonomous creation' rests. Moreover, doubt can be cast upon the very desirability of 'origïnality' even as an unattainable aspiration. It has been al1 but forgotten that the exaltation of 'original' texts is a relatively recent phenornenon: the idea of an 'author' as a 'maker' of an 'original' text would have been alien to literary thought in the classical period. Indeed, at this time, copying or imitating the great poets and w-riters that had gone before was considered to be a worthy objective and, if done successfÛIly, an admirable achievement 14 - The concept of 'originality', however, was a necessary cornponent in the elevation of the 'author'. In turn, the vision of the author as creator ex rzihilo paved the way for the - - " Robert H. Rotstein, Beyond Meraplior: Copyright Iri1;i1rgernentand ~heFiction of the Work, 68 Chic- Kent L. Rev. 725 (1992/93), at 756. In support of this assertion, Rohstein quotes Northrop Frye, A~raronry of Crificisnz:Four Essays (1957) at 97: "lt is hardly possible to accept a critical view which confuses the onginai with the aboriginal, and imagines that a 'creative' poet sits with a pencil and some blank paper and eventually produces a new poem in a speciaI act of crcation er nihilo. Hurnan beings do not create in that way- Just as a new scientific discovery rnanifests something that was already latent in the order of nature, and at the same time is logically reiated to the total structure of the existing science, so the new poem manifests something that was already latent in the order of words.. .. Poetry can only be made out of other poems; novels out of other novels." l3 Id at 757. 14 Id. at 732. See also, note 28 at 732, quoting Longinus, On the Sublinze, in Crirical Tizeoty Since Piafo 1.5, (Hazard Adams, ed., 1992) at 85-86: "This writer shows us, if only we were willing to pay him heed, that another way.. . leads to the sublime., .. It is the imitation and emulation of previous great poets and writers .... This proceeding is not plagiarism; it is like taking an impression from beautiful forms or figures or other works of art." virtual sacralisation of the author figure in Romantic thought, and it was as this Romantic figure that the 'author' entered the Iiterary property debate. iii) Proper-tisation and the Concept of the 'Wor-k' The valorisation of original genius lent weight to the claims of 'authors' to property in their writings. The deveIopment of new notions of author-genius, then, ought not to be set apart from the proliferation of more general commercial motivations during a time of great socio-economic changei5. Indeed, for the most part the emergent concept of author- genius was strategically developed and employed to fùrther commercial goals. This is not to Say, however, that the concept was devoid of ideological power: "Although the concept of authorship was introduced into English law for the functional purpose of protecting the interests of booksellers (and continued to do so throughout the eighteenth century and beyond), the term took on a Me of its own as individualistic notions of creativity, originahty, and inspiration were poured into it- Authorship becarne an ide010 a...As the authorship construct accumulated force and circumstantiality, the strategic manner in which the construct had been deployed was effa~ed."'~ Thus, by the time that 'authorship' was adopted into the vocabulary of copyright law, the word 'author' bad already acquired connotations of power, or "author-ity"17. In the general philosophical discourse of the eighteenth century, concepts of 'author' and 'controI' were associated with aspects of the "vast complex of interdependent factors '' CJ Hesse. Eniightenntenr Epistemoiogy, supra. note 2. Hesse argues that, in revolutionary France, political as well as socio-econornic facrors were at play in the reconception of authorship. The idea of the individuaktic author had in fact been introduced by the monarchist State as a tool of repression and a rneans of regulating knowledge. Revolutionary legislation did propertise the 'author's' daim to his writing, but did so in order to ensure maximum exchange, recasting the notion of the 'author' as a public servant as opposed to a private individual- Revolutionary politics and a concern for public life, led the legislators to produce "a IegaI conception of authoriaI identity that iiot onIy consecrated but also limited the author's power of self-determination for the sake of the public good-" (Id. at 13 1). l6 ~eterJaszi, Toward a Theory of Copyright: The Meramorphoses of Aurhorship, 199 1 Duke L. J. 455, at 370-471. 17 James Boyle, The Search for an Aufhor: Shakespeare and the Framers, 37 Am, U. L. Rev. 6 17 (1 988). denoted by the term individua~isrn"'~.Thus, the theme of Lockean and Hobbesian possessive individualism that dominated social thought at this time. ensured that the word 'author' was invested with particular weight. Foucault describes the ernergence of this notion of 'author' as "the privileged moment of individttalization in the history of ideas. knowledge, Iiterature, philosophy and the sciences"1g. Through this process of individualisation, the 'author' acquires "a role quite charactenstic of Our era of industrial and bourgeois society, of individuaIism and private property"". The individuality and ~origina1ityTof 'authorship' in its modem form therefore established a simple route towards individual ownership and the propertisation of creative achievement. The elevation of the 'author', achieved through the notion of original genius, legitimated writers' daims to property in their w-ritings, allowing a shifi in the author's role towards "that of a professional trading in a new commodity"". It is not surprising, then, that this concept of 'authorship' has been descrïbed as possessing an "alchernical power to transfer anything it can be made to adhere to into pl-ope)-y, absolutely defined."" I s [an Watt, The Rise of the Novei: Stctdies in Defoe. Richardson and Fieldirig, ( 1957) at 60: quoted in Jaszi, supra. note 16, at 469. 19 FolrcauIt, Whar 1s an Author?, supra. note 1, at 10 1. 'O Id. at 1 19. See also, A. Kernan, The Death of Literature (1990),at 123 (quoting Sutherland, in Plugiarism: A Symposium, The Times Lireraty Suppleme!it., 9 Apd 1 9 82, at 4 14, CO 1.4): "[Tl he appearance in the eighteenth century of copyright laws and the Iinked artistic ideas like creativity and originality as a conversion of.. . 'things of the mind into the transferable articles of property. -.has matured simultaneously with the capitalist system."' Quoted in Jaszi, supra. note 16, at 467. " Rosemary Coombe, ChalZe~zgittgParerni&, supra. note 4, at 405. --71 Rosernary Coombe, Authorial Cartographies: Mupping Proprieta- Borders itz a Less-Thetr-Brave-New- Worid, 48 Stanford L. Rev. 1357 (I996), at 1358, discussing Keith Aoki, (htiellecruai) Properp atrd Sovsreign~:Notes Toward a Cultural Geography ofArrrhorsh@,48 Stanford L-Rev. 1393 (1996)- Coombe argues that the authorial 'work' operates to silence the Other, struggling against "forces of alterity that operate as dangerous supplements to the integrity of the authodwork reIationship," (at 1360). As such. Because the individualisation of the author was believed to entail. as its logical counterpart, the propertisation of the author's product, the modem author. as an originator. became a proprietor. and his product becomes a "special kind of cornmodity"". Thus ownership daims can be explained by the trope of -0rigination'. This understanding of the connection between the Romantic persona of the author-as- originator and the proprietary interest accorded to him in his 'work'. is a major component of the "the solid and fundamental unit of the author and the work"""; the conceptual unit around which copyright is built. Thus, having examined the operative concepts of -author' and 'originality'. it is clearly necessary to subject to a similar exarnination the concept of the author's pmdticr: his original 'work'. The notion of a 'work' currently enshrined in copyright law is no more stable or determinate in meaning than that of the 'author', and, in a similar fashion to the concept of the 'author', the 'work' has been the subject of significant doctrinal reification. 'Work', as a term of art in modem copyright law, can be understood to represent the comrnodified version of a text produced by the Romantic figure of the professional 'author'. Put another way, the term 'work' is the solidification of the literary property notion, the terrn that embraces the notion of the creative production as an independent, identifiable and alienable object of personal property. Coombe posits that 'authoriaI tropes' legitimise appropriation and expropriation at the expense of dialogic public spheres and cornmunicational ethics. 23 Rose, Aurhors and amers, supra. note 2, at 1. " Foucault, Whar Is an Auritor?, supra. note 1, at 10 1. Copyright dogrna depicts the 'work' as an autonomous object with irnrnutable characteristics and a fixed textual meaning, an abstraction that clearIy enables its propertisation as an essential adjunct to the individualisation of the -work's' 'author'. The idea of the *work' as a discrete or fi-ee-standing entity differs greatly from the understanding of 'text' that existed from the classicai period through the Renaissance, when, as Rose expiains,; "the dominant conception of literature was rhetorical. A text was conceived less an object than as an intentional act, a way of doing something, of accomplishing some end such as -teaching and delighting'."" From the late seventieth century to the nineteenth century and the Romantic period, literary creations evolved into property and commodity, and the 'text' becarne a 'work', an object of knowledge and meaning rather than a behavioural process of action and reaction? Of course, the existence of copyright and the propertisation of literary creativity required this vision of the text as a stable object capable of cornmodification; a vision that paired easily with the Romantic understanding of originality and author- genius, in fact cornpounding the ideological significance of the concept of bauthor'". In the latter half of the twentieth century, however, these concepts were increasingly questioned through the lenses of stmcturalist and post-structuralist theory. Stnicturalism understood the 'work' to be located within a broader context than that of a fiee-standing object with internalised significance, as a system of signs and conventions that acquire meaning only through the process of assimilation by the reader. Post-stnicturalist critique 2s Rose, The Aurhor as Proprieror, supra. note 2, at 63. " ~otstein.Beyond Metaphor, supra. note 12, at 33-35. " Jaszi, Towards a Theory of Copyright, supra. note 16, at 479. went fürther still, questioning the possibility of a fixed identity or rneaning for any text. and understanding the reader and reading as determinative of a text whose identity rnust therefore be in a constant state of flux? The boundaries between the 'author' and the reader are thereby disintegrated as the reader becomes "an overt collaborator in an unending process of readins and writing.. . retuming us to something Iike the expressly collaborative milieu of the Middle Ages and the Renaissance with which we began."'9 While I do not intend to undertake here a thorough investigation into the ways in which the radical deconstruction of the concept of the 'work' could or should be incorporated into a dramatic reconfiguration of copyright law3', the poststructuralist critique of the consensus that generally surrounds copyright's charactensation of the 'work' highlights some critical fault-lines in the current system and the way in which it is commonly understood and applied. As the concept of the free-standing 'work' is undermined by daims of 'inter-textuality' and 'audience recoding', the 'thingification' of a text becomes increasingly difficult to justi@. Clearly, it is upon the notional 'thingification' of creative products that the operation of modem copyright law depends. 2s Rotstein, Beyond Metaphor, supra. note 12, at 35-36. '"Martha Woodmansee, On rhe Arrrhor Eficr: Recoveri,zg Coliectr'virr,, 10 Cardozo Ans & Ent L. J. 279 ( 199 1/92) at 390. Woodmansee discusses this reversal in the "trajectory of print" in the context of electronic communication and, in panicular, in relation to Jay David Bolter's book (and electronic 'hypertext' version) entitied Writing Space: The Conzpzrter, Hjperte-rt, and rhe Histoty of Writitlg ( 199 1 ). 3' For an interesting perspective on how such a copyright system (one that incorporates recent literary theory) might function, see Rohstein, Beyorrd Metaphor-, supra. note 12, from 39. Rohstein posits th, because iiterary theory understands text as having an identity as a 'speech event' - involving interaction behveen the producer, the texnial artefact and the recipient - it pennits a copyright system that seeks to determine what is consistent about a text in a particular context. An infringement action would rherefore invoIve a "universe of discourse in which it is possible as a practical maner to reach agreement on the identity of the text such that copyright law can meaningfully adjudicate." (At 40). CJ Keith Aoki, Adr@ in the 1tuerre.r~:Atrrhorship and 'Recoditrg ' Riglzts, 68 Chic-Kent L. R. 805. Aoki argues that the resilience and continued potency of the Romantic author notion in modem copyright law is evidence of the fact that claims about the 'death of the author' have been exaggerated. As such, because literary theory takes the B. The Implications for Copyright Poststructuralism directly challenges al1 of the ideas central to the curent system of copyright by throwing into confusion the previously unquestioned trinity of copyright: 'originality', the 'author', the 'work'. As a result of interlocking dependencies, a challenge to any one of these concepts disrupts the delicately balanced triad. To doubt any one, then, is to doubt al1 three. To dissolve the significance of one is to destabilise the very foundations of modern copyright Iaw. In rny opinion, ho~vever,it is possible to dissolve the meaning of these concepts without necessarily effecting the disintegration of the copyright system. To achieve this requires that we re-understand the foundations and justifications of copyright as a whole, and re-imagine the concepts around which modem copyright law is built. i) Romantic Authorship and Copyright Policp' The above discussion of the concepts that combine to produce the modem vision of 'authorship' might appear far-removed from the practical operation of the present-day copyright systern. However, while in essence this discussion centred upon the metaphysics of the law, it is, 1 believe, highly relevant to the practicalities of po 1icy- formation and decision-making. In my opinion, then, Mark Rose is correct to assert tl iat: "[mluch of the notonous difficulty of applying copyright doctrine to concrete cases can be related ro the persistence of the discourse of original genius and to the problerns inherent in the reifications of author and ~ork."'~ disappearance of the author as a given, an attempt to assimilate this theory directly into copyright would be a mistake. 3 1 A urhors and Owners, supra. note 2, at 13 1. While the vocabulary surrounding the emergence of the Romantic author-figure may appear to be somewhat antiquated, and thus no longer dominant in modem copyright discourse, this picture forgets the extent to which the vision of the author. as conveyed through this vocabulary, is still very much alive in Our curent construction of copyright and its hnction. Consider, for exarnple, arguments that have been ernployed and accepted for the expansion of copyrightable subjects in the process of development of new technologies. The strategic deployment of 'authorship' virtues in order to justi@ the extension of copyright to new kinds of subject matters is evident in the early cases concerning, for exarnple, the copyrightability of photographs3', and then, far more recently, of computer ~ofnuare~~.It is also me, however, that, while Anglo-American copyright law "presents rnyriad reflections of the Romantic conception of 'authorship"', these reflections often appear more like "images in fun house rnirror~"'~.This is the inevitable consequence of raising the authorship concept, wherever it can be rnanipulated and applied, for the purpose of supporting and fùrthering particular claims to protection. As a stmtegy for " See. e.g.. Nortage v Jackson, 1 1 Q. B. 627 (1 883): "'[A]uthor9 involves originating, making, producing, as the inventive or master-mind, the thing which is to be protected." (Per Cotton, L. J. at 635). Per Bowen L. J.: "[Tlhe tme definition of 'author' ... was the man who really represents or creates, or gives effect to the idea or fancy or imagination1*(at 637). See also, Burrow-Giles Lithograpizic Co. v Sarory, 1 1 1 US. 53 ( 1884), where the Supreme Court used this concept of 'authorship' to grant a photographer copyright protection: "[Tlhe plaintiff made [the picture] entirely fiom his own original mental coticeptiotl .... [Flrom [the] disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit." (Id. at 54-55). The copyright was justified on the basis of "views of the nature of authorship and of originaliry intellecrual creation, and right to protection.. ." (Id at 6 1). 33 See, e-g. JYhelm Assocs., /nc. v Jaslmv Dental Laborarory. Inc, 797 F.2d 1 222 (3d Cir. 1 986). cm. detzied. 479 U. D. 103 1 (1987) (holding that copyright protection couId extend to a cornputer program's "structure, sequence and organisation." Id. at 1248.) Protection for computer prograrns is often justified by means of a cornparison between the programmer and the literary -author' who imagines, inspires and creates, See e.g. Clapes, Lynch & Steinberg, Silicon Epics and Bitzary Bards: Decermining tire Proper Scope of Protection for Computer Programs. 34 UCLA L. Rev. 1493 (1987), at 15 10-45. (Cited by Jaszi, Toward a Theory of Copyright, supra, note 16, n23 at 363). obtaining copyright protection, the ideological force of the Romantic author-figure makes it an erctrerneIy powefil tool. As such, its presence and fùnction in copyright discourse has akered very Little since the occasion of its first deployrnent in the eighteenth century debate over literary property, where it \vas introduced as an effective ideological instrument with which to protect the economic interests of the bookselIers. Rather than revealing the importance of the me interests at stake, the Romantic author figure achieved the intended effect of obfirscating and concealing these interests. It is generally with the same purpose and the same result that the concept is invoked and applied today. In this vein, Jaszi argues that, to a point,: "'authorship' has remained what it was in eighteenth century England, - a stalking horse for economic interests that were (as a tactical matter) better concealed than revealed, and a convenient generative metaphor for Iegal structures that facilitated the emergerice of new modes of production for literary and artistic ~orks."~~ Thus, in the case of computer prograrns, appeals to the vision of Rornantic authorship have tended to obscure the actuâl concerns involved in the question of software protection, and have ultimately supported the interests of the corporate bodies that ernploy people to engage in this kind of 'auth~rshi~'~~.The sarne manipulation of the concept has achieved paradoxical results in the contexts of 'work-for-hire' doctrines, where the claims of employen to direct ownership over the products of their employees have been rationalised in terms of a bizarre inversion of the 'authorship' concept3'. The 34 Jaszi, Towards a Theory of Cop_vrighr,supra. note 16, at 456. 35 Id. at 500. See Pamela Samuelson, Creating a New Kind of lrtreifecrrtalProperv: Applying the Lessons ofthe Ch@ Law to Cornputer Programs, 70 Minn. L. Rev. 47 1 (1985). See also, Jaszi, On the Author Eflect, supra. note 5, n19 and accompanying text, at 298. 37 Jaszi, Towards a Theoty of Copyright, supra. note 16, at 485-490: discussing the way in which the employer came to be seen as the originator, possessing the inspiration and the motivating factor in the irony, of course, lies in the extent to which the Romantic notion of 'authorship' has sewed the commercial interests of publishers, employers and distributors, ofien, in fact, at the expense of the people whose role in the 'creative7 process was most similar to that of the Romantic author figure3'. In the light of our persistent adherence to the eighteenth century construction of the Romantic author, and in recognition of the ideological force that this construct continues to wield, it follows that Our understanding of 'authorship' as an independent process of original creation has significant influence upon modem copy-right discoune, and significant implications for modem copyright policy. James Boyle argues that the often unstated vision of copyright (and, indeed, most information systems) as existing to protect and to reward the mythical figure of the Romantic author, skews our anaiysis of these systems. Ultimately, he posits, this philosophical construct causes us to value some forms of 'creation' over others, to underestirnate the importance of extemal sources in the 'creative7 process, and overemphasise the claims of the identified 'a~thor'~'. It does, indeed, seem inevitable - and the previous chapters clearly testiQ to this fact - that the way in which we conceptualise authorship tends to favour the individual .creation' of the 'work', while the employee became a rnere mechanic, following orders. This developrnent is evidence of the ideological force of authorship. Cf:Jaszits discussion of the recent upsurge of concern surrounding the 'moral righcs' of the author, which tend to work against the interests of publishers and employers, in Toivard a Theory of Copyright, supra. note 16, at 496-498, and in The Aurhor Efect, supra. note 5, at 298-300. Jaszi understands this development as evidence of the continuing force of the Romantic authorship vision for its own sake, and its persistent presence in legal consciousness as a purely ideological concept in spite of its commercial inconvenience. This may be even more the case in Britain and Canada, which have displayed much less reluctance to endorse the 'moral rights' concept required by the 1971 Paris Act of the Berne Convention for rhe Prorection of Literary and Artistic Works, Article 6. 59 See Boyle, Shamans. Sofnvare and Spleens ( 1997). characterised as the 'author' in copyright cases- What grows from this vision of authorship is a form of moral reasoning wherein the moral ideal of copyright law becomes rni~~laced~~.Certainly it is true that, as an overarching theory, the vision of Rornantic authorship is incapable of explaining every facet of copy-right law'". In rny opinion, however, the myth of the Romantic author does appear to provide, at least in part, an explanation for the sheer scope given to the rights of copyright owners, and the importance (moral, culturaI, and legal) accorded to them. The myth may not provide an over-arching explanation for copyright, but it is generally present (if often beneath the conscious level), animating copyright discourse and supporting calls for wide protection. Indeed, as processes of creative production have come to resemble Iess and less the vision of creativity embodied in the Romantic author concept, the ideological function of 'authorship' has onIy grown correspondingly. The persistence of this vision in the legal subconscious might explain, at least in part, the complacency with which we accept the expansion of rights over, and the over-propertisation of, intellectual 'creations'. -10 Mark Lemley, Ronrantic Aurhorship, 75 Texas L. Rev. 873 (1 996/97),at 878 (discussing Boyle, Sizanrans. Sofware and Spleens). '' See id. at 882-888: Lemley purports to contradict Boyle's conciusions with respect to the importance of Romantic authorship on the basis-that it cannot explain rnuch of intellectual property Iaw. Lernley argues, instead, that it is the rhetoric of private property that dictates the development and enforcement of intellectual property rights. (See in$%. part B. for a discussion of the impact of private property discourse upon copyright reasoning,) While it is my opinion that the construcs of Romantic authorship and private property rights converge to compound the distortion of copm-ght's function, 1 do believe that Lemley is wrong to discount Boyle's thesis on the basis that it cannot adequately explain developments in copyright law. ~emle~points fikt to the fact that intellecrual property is heavily skewed to protect the interests of corporations as opposed to individual authors. While this is, of course, true, this fact is by and large overlooked in copyright discourse. As such, because this reality is unacknowledged, it cannot affect the rhetoric that surrounds copyright, and so cannot displace the Romantic author figure. Secondly, Lemley argues that, because every author is also a user of prior works, there is no explanation for why Rornantic authorship would favour the protection of the first-generation author over the second-generation author. This fails to recognise,- - however, the extent to which the secondary author fails to fit neatly into the Romantic author vision: this is due to a perceived Iack of the requisite 'originality' in his product. Because of the myth surrounding the creative process of the Romantic author, the fact that no author creates without reference to pnor creations has failed to infiltrate copyright discourse, and so, again, has not displaced the Romantic author in copyright rhetoric. ii) Romantic Aztthorship and Fafi-Dealing If it is accepted that the trope of 'authorship' and the mythical figure of the Romantic author are capable of affecting policy and decision-making, then it follows that these notions may be subtly guiding the application and development of copyright principles. Mark Lemley, however, posits that the existence of the fair use doctrine is evidence that, rather than 'authorship' playing the decisive role in the formulation of copyright Law, copyright cm be explained in the alternative as reflecting a genuine attempt '70 balance the cornplex, intertwined interests of creators, improvers, cornpetitors, and the public -1142 1 do not pretend that this question is a simple one. 1 am not purporting to discount Lemley's theory of copyright, and, in fact, 1 do accept this theoretka1 explanation in large part."3 However, I am now concemed not with the underlying explanation for al1 of copyright, but rather, with the influence that notions of 'authorship' may have on our understanding of copyright, its function, and the marner in which it should be applied in order to best perform this fiinction. This might appear to be a pedantic distinction, but there is a crucial, if fine, line to be drawn between the explanative theory behind inteIlectua1 property and the constructs that govern its enforcement and developrnent. Indeed, it is with the discrepancy between these alternative and frequently conflicting theoretical approaches that this paper is concemed. '" Mark LemIey, Romantic Aurhorsh@, supra. note 40, at 888. 4; Lemley points to the US. Constitutional empowernient clause, the preamble to the Statute of Anne, and numerous examples of express statement from the U.S. Supreme Court in support of his position (id. nn 97-104 and accompanying text, at 888-890). I have argued in the preceding chapters, in a sirnijar vein, that the theoretical bases of copyright law reside in the instmmentaIist attempt to promote the public interest through a carefiilly constructed incentive system. Interestingly, in providing evidence to support bis assertion that the 'balancing theory' underlies the copyright system, Lemley refers specifically to the fair use doctrine as an instance of such balancing, shaped by the desire to provide adequate protection for intellectual property without over-protectionu. While it is indeed the case that the existence of fair use cannot (easily) be explained by the vision of rornantic authorshipa5, Lemley is wrong to infer fkom this that the docmne has not been "shaped" by this dominant vision. In doing so, Lemley is confùsing discussion of the fundamental theoretical underpinnings of fair use with concerns over the doctrine's development and (mis)application, It seems to me that Romantic authorship must be a senous consideration in the latter, if not the former, discussion. The fair dealing defence is the specific locus of a basic tension between the demands of an effective incentive system, capable of ensuring maximum productivity for the public good, and the demands of a sufficient public domain capable of permitting users the maximum access to pnor 'creations' for the public good. It is clear that the vision of authorship adopted in copyright discourse might play a role in influencing the resolution of this conflict. fa) Favozrrina the 'Author' U Id, at 890. " Conceivably, one might argue that a less than absolutist understanding of Romantic authorship wouId entai1 the need to ensure a righr of access to a second generation authors. However. such an interpretation is not entirely consistent with the concept of 'originality' inhering in the Romantic author vision. Moreover, it embraces onIy a very limited understanding of the purpose and fûnction of the fair use doctrine, potentialIy capable of expiaining fiee use for 'creators' of derivative or (even more tenuously) transfomative uses, but overlooking other elements OFthe general public interest in access and dissemination. The Rornantic author vision privileges some textual producers46 over others. Specifically, the authorship concept pnvileges the primary producer by disabling Our ability to value the secondary producer and the 'downstream uses'47 of a primary work. Examples include the copying and compilation of course materials for studentfs. transfomative uses such as parody"g, and so forth. The problem here is that Romantic authorship largely occludes discussion of the social, educative or cultural value of the second product, allowing a finding of infringement that contradicts the very purposes of the copyright system. Because copyright embraces a fictional notion of what a 'creation' and a 'creator' should look like if they are to fa11 within its protective umbrella, it precludes alternative methods and actors frorn benefiting fiom the system. As such, the copyright system cannot effectively mediate the divide between maximum incentive and maximum access. The refusal of the system to understand the worth of the second generation producer results in an unwillingness to broaden the scope of the fair use defence. The defence is thereby prevented from effectively performing its role in 16 This term, used by Keith Aoki, is intended to obviate the implications that attach to terms such as 'work', 'author' and 'creator'. Admittedly, however, there reniains a danger that the 'producer' implies a 'product' with al1 the connotations of objectification and cornmodification that attach to the concept of the 'work'. J7 This is also a tenn adopted by Keith Aoki, AdrrjÏ in rhe Interrat, supra. note 30, at 23. 4s Id- at 8 15. Aoki discusses Basic Books, Inc. v Kinko 's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 199 1 ), where the court held that the 'anthologising' of pre-existing materials by professors into course books for use by students was an infringement of copyright. Aoki argues that: "[the decision] underlines the degree to which the Kinko S court failed to focus on the substantial added social value (to students, professors, universities, etc.) by the serial nature of the author-like editorial decisions involved in tailoring, re-assessing, and distributing particular groupings of materials to students in a new form. The court's concentration on the individudised author mode1 made it virtually impossible to see, let alone achowiedge the value of the contributions made through such modes of deviant authorship." 49 See. e.g.. Rogers v Koons, 960 F.2d 301 (2d Cir), cert. denied, 113 S. Ct. 365 (1992). See aIso, Aoki, id. at 8 13-4. Aoki argues that the court' interpretation of the facts and ultirnate decision were dependent upon a polarisation of the parties to the case, achieved through the vision of Romantic authorship: pure artist v. connivingkonniving art world rook; solo-production v fabrication to specification by skilled labourers; and photo-corn-life v. paradostic treatment of pre-existing cultural material. These polarisations converge to preclude suitable recognition of the cultural and artistic contribution made by Koon's product. ensuring that the application of copyright law does not stifle the very creativity that the law is deçigned to foster.jO The metaphor of 'authorship' allows the perceived 'author' to have his product recognised as a 'work'. Because the concept of work is inherentiy linked to the vision of the Romantic author and the accompanying notion of originality, then a second generation producer cannot create a 'work' cosisable under copyright Law. Put another way, the text of the user does not achieve the necessary level of objectification that would allow the law to recognise that person's interests in the text, or the privileges granted by the incentive-based system. The products cannot therefore compete equally as 'works' that contribute something to society and, ultirnately, the public dornain. As such. the social importance or the culturaI value of the second text cannot corne within the cognisance of the law? Because of the objectification of the first product together with this refusal to recognise the second, the fair use concept is prevented for performing its allotted task of alleviating the othenvise unbending concept of property that pervades the copyright system. As Rotstein observes: "the construct of the "work" - the reification of the text - provides a built-in bias toward the plaintiff s w~rk."~' 50 This was the fiinction attributed to fair use in the case of Iowa Stare Research Fomdario~i.Itzc. v Arn Broadcasting Cos., 621 F. 2d 57 (2d Cir. 1980). in explicating Rotstein's textual strategy, Aoki describes the process and goal of his approach: "Radically expanding the concept of authorship by accounting and arguing for legal acknowIedgement of a wider range of alternate authorship possibilities works to break up the image of the individuated Romantic author, opening up the possibility that a chastened cop-vright regime may then be able to reconceive of texts as fluid events, with dynamic inputs coming in, feeding back and intersecting at multiple loci." (Adrrp itt the Inrerteq supra. note 30, at 23. This is extremely relevant to the hnctioning of the fair use defence: recognition of the value of the various stages in the dynamic processes of text production and the cultural development of meaning would entai1 recognition of the value contributed to society by activities undertaken by users at these intersecting loci- The policy underlying the fair use defence would therefore ensure that many such uses could be protected from the risks of a finding of copyright infringernent. 52 Rotstein, Beyond Meraphor, supra. note 12, at 794. fb) Stiqmatising the User Another factor to consider is the subconscious and rhetoncal impact of the Romantic author vision upon the actual application of the fair use defence, The idealisation of the author figure entails the corresponding demonisation of the user, It thus produces a further instance of judgmental moralism, skewing the application of the fair use doctrine. Having idealised the author and valorised his 'work', the user becomes a 'thief or a 'pirate' and so the subject of al1 the moral condemnations that accompany these descriptions. As opposed to someone who is using a pt-ior text to contribute something new and important to society, the user becomes someone who is stealing someone else's 'work' (their original creation and their property) and, as such, it is simply more palatable to impose liability upon thems3. Even the terms 'fair use' and 'fair dealing' suggest using or dealing with a 'thing' that belongs to someone else. Furthermore, the term 'fair' fias a rhetoncal force: the defendant has to prove that his or her use was 'fair', in contrast with normal uses, which are, presumably, 'unfair'. It is clear that terminology itself reflects a "particularly moralistic view of copyright infringement". And how much less likely must it be that a use will be considered 'fair' when it involves 'stealing' the 'work' of an 'author' who 'created' an 'original' 'product' fiom nothing through his own 'author-genius'. Given that, as Lemley was correct to argue, copyright is not built around the concept of the Romantic author, but rather around the goal of achieving maximum production of valuable creation with the maximum public access thereto, it seems unfortunate that its fulfilment of this purpose is so dramatically hindered by the attendant construct of Romantic authorship. C. Conclusions on Romantic au th ors hi^ What should be taken From the above discussion is, at the very least, the need for a radical demystification of the 'work' concept and of the notions of 'originality' and the 'author' that dominate copyright rhetoric. As they are presently constructed, these rhetot-ïcal devices compound to produce a vision of authorship that problematises the role and function of the copyright regime; a regime that seems to be "in the thrall of an idea [of romantic authorship] that is taken as tmth where it should be questioned as d~~rt-ia."~' Thus, the tenets of copyright doctrine must be contextualised, deconstmcted, and demythologised. By recognising these concepts as politically, economicaIly, culturally, and socially constructed metaphors, it may become possible to reconfigure the foundations and motivations of copyright law, thereby enabling it to better serve its function. This process would allow the fair use doctrine to become freed from the disabling assumptions that surround copyright and that stigmatise socially valuable uses. Et could then begin to adequately perform its pivotal function in the furtherance of the social goals that underlie, explain and justifi the copyright system. III. Private Propertv Theorv It is clear from the discussion above that notions of authorship impact directly upon comrnon perceptions of entitlement. Thus, as the vision of the Romantic author developed in the eighteenth century, it attained its imperus through a convergence with the dominant social philosophy of possessive individualism, Author-reasoning was compounded by theories of private entitlement, giving weight to daims of right. Rights-based author-reasoning remains very much a part of modem day copyright rhetoric. 1 have argued that this ernphasis in copyright analysis has a significant influence upon Our understanding of copyright, affecting both Our basic characterisation of the regime and the extent of the rights that we expect it to accord. 1 will argue in this section that notions of reward, desert and natural nght give copyright holders' claims a substantial and unmerited normative force that pervades Anglo-American copyrisht discourse. A. Locke's Theo~of Acauisition of Propertv "The desire to Iink a theory of intellectual property back to Locke probably bas much to do with reasons of ideological legitimacy. Locke remains a po werful totem."" For advocates of wide copyright protection there is an obvious benefit to be gained from linking copyright to Lockean theory. The extent to which Lockean theory has entrenched 54 James Boyle, A Theory ofLaw and Information: Copyright, Spleens. Blachmail. and Insider Traditzg, 80 Cal. L. Rev. 1415 (1992), at 1534. 55 Peter Drahos, The PhiIosophy of Inrellectual Properry ( 1 996), at 48. itseIf within our society's ideologicaI framework is often underestimated, but it undoubtedly retains a stronghold in the basic assumptions made about property entitlements even today. This ideologicaI force may, however, owe more to the philosophical attractiveness of the theory than to its ability to decipher the issues at stake and to dictate definitive answers to unresolved questions. 1 base this suggestion upon the observation of Peter Drahos that the property theory is itself disputable in meaning, result and intention, ultimately resulting in a 'henneneutical free-play' Cor strategic interpreters of the Lockean modeli6. i) The Fruits of Labozrr The Lockean justification for copyright rests upon the assertion that the original author, having exerted mental labour to create a work, is entitled to the exclusive rights in it". This assertion depends upon the 'root idea' in the labour theory of acquisition that "people are entitled to hold, as property, whatever they produce by their own initiative, intelligence, and ind~str~"'~.As such, the justification corresponds with the powerful intuition that people are entitled to the hits of their own labour. According to Locke, the right to acquisition of private property through labour is derived frorn natural Iaw principles: "Though the Earth, and al1 inferior Creatures be common to al1 Men, yet every Man has property in his own person. This no Body has any Right to but himseIf. The Labour of bis Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State of Nature hath '"ee id- at 44, 57 See Barbara Friedman, From Deonrology ro Dialogue: The Cultural Conseqrrences of Copyright, 13 Cardozo Arts & Ent. L. J, 157 (1 994/95) at 16 1. See, in general, id- at 160-67- 5s Lawrence C. Becker, Property Righrs: Plzilosoph ic Fotindarions ( 1 977), at 32. provided, and lefi in, he hath mixed his Labour with, and thereby joyned to it something that is his own, and thereby makes it his proPei-zy."" Al1 persons have the liberty to use the commons, given to mankind by God, and can acquire property in the products of his labour, because, "the Labour- of [one's] body, and the Wur-k of his Hands ... are properly his". The theory of acquisition begins with the assumption that everyone had a namral right of property in their own bodies, and so, it follows, whenever a person mixes or annexes or joins one's labour to a thing, that thing becomes the property of that person. Prior to these liberty rights is the duty not to harm another "in his Life, Health, Liberty, or Possessions". Al1 persons then have the duty not to interfere with the resources others have appropriated or produced by labouring on the cornmon; taking the resources appropriated by another causes harm to that person. This means that every person has a property right in the products of their labour, and the taker of a labourer's property is sorneone who "desired the benefit of another's Pains, which he had no right t~."~'Because things are not considered to be of any use until they are appropriated6', and because such appropriation involves labour undertaken for expected benefits, it would be unjust to let someone else receive the benefits of that labour6?. Property rights, Locke seems to suggest, are a just reward for the indus tri ou^^^. ii) The Lockean Provisos yr John Locke, Second Trearise of Civil Governmenr, $ 27. O0 Id., $34. 0 1 rd., $28. '' Becker, Property Rights, supra. note 58, at 35. 63 Drahos, supra. note 55, at 44. Drahos notes that, although Locke does not invoke the language of 'just deserts', he does refer to 'just Propery' (id., $46). For an interesting discussion of desert-for-labour arguments with respect to intellectual property, see Lawrence C. Becker, Deserving ro Own Intellectual Properry, 68 Chic-Kent L. Rev. 609 (1992/93). This. in itseK is not, however, sufficient to establish a right in property over the product of labour: in order for there to be such a right, it is also necessary that two fundamental conditions are metM. The first condition requires that, before a property right can orïginate in an object to which labour is joined, there must be "enough, and 2s good left in cornmcn for ~thers"~'.The second condition, ofien called the 'no-spoilage proviso'. requires every person to take no more than he can use on the basis that God made things for people to enjoy and not to spoil or de~tro$~.While these provisos are often neglected or dismissed by those who seek to rely upon Lockean theos. to assert rights of private ownership, their importance with respect to the acquisition in intellectual property is not insignificant6'. B. Problems with a Lockean Analvsis of intellectual Property It is not my airn in this section to provide an interpretation or overarching critique of Locke's property mode1 as a whole6'. Nor do I purport to undertake a comprehensive This seems to me to be the rnost plausible interpretation of the role of the proviso in acquisition analysis- This accords with the interpretation offered by Clark Wolf, Corzrenlporary Propery Rights. Lockean Provisos and the Interests of Ftrrtcre Generations ( 1995) 79 1-8 18: "Mixing labour with an object merely supports a presumptive claim to appropriate. The proviso functions to stipulate conditions in which this presumptive claim will be undefeated, or overriding, and will therefore impose duties of non-interference on others." Quoted by Adam D. Moore, Toward a Lockean Theory of lntellectnal Properg, in Adam D. Moore (ed-), lnrellectrral Property: Moral. Legal and International Dilemmas ( 1997) at 84. 6S Locke, Second Trearise, $27. 66 Id-, 5 3 1: "As much as any one can make use of to any advantage of life before it spoils; so much he may by his labour fix a Property in." It is perhaps worth noting at this stage the criticism made by Drahos, szcpra- note 56, at 43: "There is more than a touch of unrealiy about this part of Locke's discussion. One could, according to Locke, acquire fabulous wealth through stocks and money but it was morally rcprehensible to allow a bag of plums to go to waste. With breathtaking swifhess he grides over the connections benveen property, wealth, political and social power and the implications of this for a theory like his which claims that men are naturally equal and have a natural right to property." 67 See infra., section B. i), (a) and (b). '"or a concise critique of Locke's theory, see Lawrence C. Becker, Properv Rights, szcpra. note 58, at 36- 56. For interesting and conflicting interpretations of Lockean theory on property acquisition, see J. Tully, A Discourse on Property (Cambridge, 1980), and C.B. Macpherson, The Polifical Theory of Possessive I~zdivid~talisrn(Oxford, 1979). analysis of the proper application of Lockean labour theory to the realm of intellectual property and the consequences there~f?~U'hat 1 do wish to do, however. is to briefly highlight the possible limitations and inadtquacies of Lockean theory in the area of intellectual property. Put another way, 1 want to shed light upon some of the sturnbling blocks that advocates of a Lockean theory of intellectual property must encounter in their attempt to recast the theory of acquisition in terms of intangible or ideal objects. Although the basic theory rnight be assurned at first glance to transpose unproblematically into the intellectual domain, 1 will suggest that these stumbling blocks are manifold. The following discussion is divided into two categories of critique: what I will term the 'intemaI' and the 'exterrial' criticisms. The first category will consider arguments made from within the premises of Lockean theory that pose difficulties for the acquisition of private property rights in intangible objects under Locke's model. The second category will focus on arguments that cast doubt upon whether Lockean theory has any role to play in the debate over intellectual property rights at all. In essence, the distinction is between arguments regarding the extent to which Locke's theory cm inform or legitirnate our notion of intellectual property, and arguments that question whether it o@r to be so employed. Ultimately, 1 will argue that the debate over the possible or 69 For discussions on Lockean natural rights philosophy in intellectual property law, see: W. Gordon, A Property Righ t irr Se(jlE,rpression: Eqtia lis. ar~dI~zdic'idrralism i~z th e Natura l Law of Intellecrual Propery, 102 Yale L. J. 1533 (1993);W. Gordon, Otz Owning /~ifor~nariori:I~rtellectrial Property alid the Restitrttionary Imptrise, 78 Van. L. Rev. 149, ( 1992); .4/fed C. Yen, Restoritzg the Narrcral Law: Copyrighr as Labor and Possession, 51 Ohio St. L. J. 5 17 (1990);W. Gordon, An Inqrciry into the Merits of Copyright: The Challenges of Consistency, Consent, und Encouragenzetzt Theoty, 4 1 S tan ford L. Rev. 1343 ( 1 989);K. M. S pector, An Oritline of a Theor-y Jrlstrfiing Inte[lectual and Industrial Properiy Rights, 8 European inteIlectua1 Property Law Rev. 270 (1989);E.C. Hettinger, Just~fiingIntellectual Property, 18 proper application of Lockean theory is at best unhelpful. At worst, the discourse entailed by consideration of Locke's property mode1 is positively harmfùl when applied to. intellectual property. i) Irzternal Critiques of a Lockeatz Inreliectual Properp Tlzeo~~~ Ofien, analyses of private property are associated with Lockean theory sirnply on the basis that they utiIise Locke's 'mixing' metaphor and seek to establish the existence of a right prior to enactment of positive law. As a result of wide acceptance of Lockeam assumptions, together with the drastic over-simplification and decontextualisation of Locke's theory, it is hardly surprising that the Second Treatise seems to have been widely- assumed to offer a unambiguous defence of intellectual property70. Indeed, it has been suggested that Locke's theory of original acquisition is more readily applicable to. Nztellectual property than to the physical property it was intended to 1egitimate7'. Such ar position must be founded upon the belief that the 'enough and as good' proviso is satisfied in the case of acquisition of intellectual property7'. a) Copvri~htand the 'Enough utzd as Good ' Proviso It is widely argued that the 'enough and as good' proviso is necessarily fulfilled with regard to intellectual property on the basis of distinctions drawn between physical andl Phitosophy and Public Affairs, 3 1 ( 1989); Justin Hughes, The Philusophy oflnteliectttal Propery, in Adam D. Moore (ed.), Infellectual Property. supra. note 64. 'O Edward W. Ploman & L. Clark Hamilton, Copyright: Inteflectual Property in the lnfortnatio~zAge (1980), at 13 (cited by Wendy Gordon, A Propers. Righ in Self-Expression, supra. note 69, at 1540. 7 1 Justin Hughes, The Philosophy of Intellecrual Propcriy, sztpra. note 69. Hughes writes that "Locke's unique theoretical edifice [may] find[ ] its firmest bedrock in the common of ideas." (At 14 1). " Hughes argues that the intellectual property system is in fact the only area in which the 'enough and as good' condition can be said to hold me. Id. intellectual subjects of property rights; a distinction which is believed to render satisfaction of the proviso by the latter entirely unproblematic. The proviso can be undentood as a "no loss to others" precondition for property acquisition, requiring that a labourer does not take away from others an existing good thereby worsening others' position by their aFpropriation73. Because ideas, unlike physical property, are 'non- nvalrous', it is often thought that the condition is easily met. In other words, ideas can be used by any number of individuals concurrently in a way that a physical object cannot, and so, it is argued, possession and use of an intellectual work cannot preclude another's possession or use of it, and so cannot cause them to suffer any loss". There is, however, roorn to argue that the sufficiency limitation can operate even in the case of appropriation of abstract objects. Peter Drahos suggests that: "even where the stock of abstract objects is infinite, the human capacity to exploit that stock at any given moment is conditioned by the state of cultural and scientific knowledge which exits at that historical moment .... The set of usable ideas or knowledge may also be further reduced because some ideas or knowledge rnay be necessary gateways to others." It is clear that the possibility of exploiting abstract objects will always be limited by human capabilities. In this sense, the notion of a more or Iess infinite set of abstract objects can be distinguished from the realities of social development and knowledge accumuiation. However, more important for Our purposes is the second factor '' Becker, Propery Righrs, supra, note 58, at 42-43; Hettinger, Jusrfifirg htellecrrtal Properry, supra. note 69, at 43: Nozick, Anarchy, the Stare. and Ufopia, at 175-82. 74 See, e.g. Hughes, sccpra. note 69, at 129: "With ideas, the inexhaustibiIity condition is easily satisfied; each idea can be used by an unlirnited number of individuals. One person's use of some ideas (prior to intellectua1 property schemes) cannot depiete the cornmon in any sense." [Emphasis in original]. See also, Adam D. Moore, Toward a Lockean Theory, supra. note 64, at 98: "The individual who takes a good long drink from a river does as much as take nothing at all. The same rnay be said of those who acquire intellectua1 property.. .. The case for Locke's water-drinker and the author or inventor are quite alike." contributing to reduction of abstract objects: where one idea is a 'gateway' to another - which, given the dialogical nature of social 'progress', wiI1 arguably always be the case - to remove the gateway idea from the intellectual cornmons may well be in contravention of the 'no loss' requirement. Justin Hughes argues that, not only does one person's use of some ideas not deplete the common, the common actually expands with use. Thus, idea X makes possible ideas Y and 2, which could not have corne into being without sorneone first having used x7'.The problem with this assertion arises in an ex ante analysis: if A obtains a property right through his use of idea X, then that property right can exclude B and C from having access to X, and so can prevent them from developing Y and 2. Does this mean that B and C are worse off than they would otherwise have been? A 'no hardship' argument can be made on the basis that B and C have not suffered as a resuIt of A's property right, because they are in fact no worse off than they would have been if A had never 'created' This argument, however, approaches the question of Ioss in a highly abstract way that arguably does not correspond to the reality as experïenced by B and C. In practical terms '' See Hughes, Philosophy of I~~tellectualPropery, supra. note 69, at 130-32. '"t was upon this basis, for example, that Jeremy Bentham based his assertion that copyright "produces an infinite [beneficial] effect and it costs nothing", in Bentham, A Marzual of Polirical Economy (John Bownng ed.. 1839), at 71, cited in Jeremy Waldron, From Authors to Copiers: Individual Righrs and Social Values in Intellecrual Property, 68 Chic-Kent L. Rev. 84 1 (1 993), at 854. Waldron also cites, in relation to this point (but with regard to patents), Clark, Essenticlls of Economic Theoty (1907) at 360-6 1 : "[The owner of intellectual property] is allowed to have an exclusive control of something which othenvise might not and ofien would not have come into existence at all. If it would not.. . the inventor's monopoly hum nobody. It is as though in some magical way he had caused springs of water to fiow in the desert or loam to cover barren mountains or fertile islands to rise from the bonom of the sea. His gains consist in it seems possible, indeed necessary, to argue that, yes, B and C are worse off as a result of A's exclusionary right. This conclusion follows from an understanding of culture as dialogici7. To say that B and C have lost nothing is to misunderstand the nature of cultural discourse. Granting a property right in X has precluded others from using X in whatsoever way they choose, responding to X, transforming it, cntiquing it, building upon it. While, without A, X might not have been there for B and C to use, once it is there and has made its contribution to the cultural discourse, to prevent B and C fiom using it is not only to exclude them fiom X per se, but is to prevent them from engaging in the cultural dialogue, fiom responding to the message conveyed by X. They are thus worse off because they have been prevented fiom inaking their contribution to the 'drive to meaning' of cultural Iife. If a certain musical phrase is introduced into the world by one composer, then to prevent a second composer from incorporating that phrase into his music may leave him ostensibly no worse off than had that first composer never written the phrase78. However, the first composer did write that phrase and it is now 'out there'. something fiom which no one loses, even while he enjoys thern.,.." It is clear, then, that this position is, in quite a fundamental way, attached to the romantic author concept of creation ex tzihilo. 77 For an interesting discussion of the impact of trademark law upon cultural dialogue and the formation and maintenance of cultural identity, see Rosemary Coombe, Objects of Property and Subjecrs of Politicsi fritellecrual Properry Laws and Democraric Dialogne, 69 Texas Law Rev. 1853 (1 99 1). Coombe argues that the cultural life of democracy, being quintessentiaIIy diaiogical, relies upon transfomative meaning- making (a 'drive to meaning') in chains of responses to social signs. On this basis, Coombe asks: "If what is quintessentialiy human is the capacity to make meaning, challenge meaning, and transform rneaning, then we strip ourseIves of our humanity through over-zeaious application and continuous expansion of IP protections. Dialogue involves reciprocity in communication - the ability to respond to a sign with signs. What meaning does dialogue have when we are bombarded with messages to which we cannot respond, signs and images whose signification cannot be chailenged, and connotations we cannot contest?" (At 1879). This is the basic exarnpIe offered by Waldron as a possible application of the 'no hardship' argument; From -4uthor.s ro Copiers, supra. note 76, at 864-65. Thus, to deny the second composer the possibility of response or development or interpretation of the musical phrase worsens his situation because he is now unable to write what he wants to write, to add what he wants to add to the cuIturaI conversation. As humans, we do not measure our loss by constant reference to baselines, to comparable loss in alternative scenarios. To find a gateway and then to have it closed in your face and plastered with no trespassing signs is a very different experïence from that of never finding the gateway. It results in a harm that is not recognisable in evaluations of basic -but for.. .' hardship7'. In effect, to Say that B and C are no worse off as a consequence of A's property right, is to ignore the nature of cultural development and contribution to social discourse. Hughes addresses this problern as one of 'added labourys0. He points to copyright pnnciples that accord property ownership to a labourer where his labour is sufficiently separate fiom the 'parent idea', and awards ownership to the owner of the 'parent idea' where the new work bears too much resemblance to the original. As an example of the balancing of these pnnciples, Hughes uses the law regarding parody. By basing his discussion of the leeway given to parody upon concepts of "significant independent labour or creativity" he attempts to situate the law within the discourse of natural rights to the products of one's labour. '"bis example is intended as a parallel to the exarnple given by Waldron, supra. note 76, at 866-67, which is concemed with the 'no hardship' rule as applied to patents. Waldron's example, used to ilIustrate the fallacy in the 'no-hardship' argument, concems a person (Q) who is dying of a terminal disease. Prepared for death, Q hears that P has developed a drug that wiI1 remit his disease. P rnakes the drug available to some of his friends, but excludes Q because he doesn't like his poIitics. Has Q suffered some form of loss as a result of P's exclusionq right in the drug? The problem with this approach is clear: parodists do not benefit from notions of additional labour, but from notions of fair use. Parodies are not valued because of additional labour expended, but rather because they are recognised as contributing something important to social discourse and critique. It is interesting that, in order to satisS the no loss requirement, Hughes in effect relies upon a concept of fair use disguised in the terms of labour and creativity. Fair use, however, protects many uses that do not involve extensive labour (for exarnple, photocopying an article for the purposes of research) and does not protect many laborious uses (for exarnple, rewriting a novel as a screenplay). The reason for the incongruence of fair use and independent labour is precisely that the two considerations are unrelated (or, when related, are only coincidentally so). As such, fair use is not satisfacrorily accomrnodated by the Lockean mode1 of property acquisition. It is teiling, then, that Hughes find hirnself relying upon an example of fair use in his attempt to obviatr the implications of the 'enough and good' proviso. In reality, fair use allows the use of X as a gateway to ideas Y and Z where a natural rights property mode1 may not. Its function is not to reward B and C for the labour that they have expended, but to allow the continuation of social and cultural dialogue that A's property right might otherwise preclude. Fair use cannot be explained by Lockean labour theory - indeed it will usually infnnge upon the very property rights that Lockean theory is purported to justie - and as such it cannot appropriately be used as evidence that intellectual property laws in general, and 80 See Hughes, The Philosophy of Intellecrrtal Propertv, supra. note 69,at 13 1-32. 196 copyright in particular, do not faII fou1 of Locke's no Loss requirement. It therefore seems arguable at least that, notwithstanding the non-crowdable8' nature of abstract objects, the appropriation of intellectual property may not leave 'enough and as good' for others. lb) Copvrikht and the No-Spo iZa.ce- Pro viso The no-spoilage proviso is also less easily satisfied in the case of abstract objects than is generally assurned by Lockean theotists. Writings, songs, films, formulas do not, of course, spoil in the way that a basket of plums might. They are non-perishable in the sense that "they almost aiways retain future val~e"~'.In other words, it is arguable that there can be no "internal deterioration" in the value of an idea. It seems somewhat reductionist, however, to assume that the acquisition of objects of intellectual property is incapable of violating the no-spoilage proviso simply on the basis of their abstract nature. In some sense, it seems possible to argue that ideas can spoil: once appropriated their time span of useful application might be limiteda3, ideas become stale, new stones become old news, literature becomes dateds4 and criticisms become irrelevant. Hughes argues that these are simply examples of decline in the social value of an idea below an optimal point, while the internal value of the idea itself remains constants5. On '' An object is 'crowdable' where one person's use of it is an obstacle to at least one other's use of it. See Waldron, From Arrthors to Copiers, supra. note 76, at 870-7 1. '' Id, at 139. s3 Drahos, A Philosophy of hrellecrual Properv, supra. note 55, at 5 1. &J Hughes, The Phihophy of lntellecatal Properry, supra. note 69, at 139. '' Id. at 13940. this basis, he suggests, it is a comp1eteIy different kind of loss than the food spoilage envisioned by Locke. Moreover, the perceived loss must be speculative and possibly reversible, as there may, at some time in the future, be a recovery of value. This argument appears, however, to misrecognise the nature of the value of abstract objects, once again ignoring the question of cultural discourse. Hughes position is essentiaIly individualistic, based upon the idea that there is "no Ioss to the individzral because the act of 'consumption' is inseparable from the act of production. Intellectual property holds value derived solely from the act of ~reation."~~ The problem is, however, that, given the social and cultural roIe of abstTact objects, it seems besides the point to assess value or loss thereof on the basis of the ' internal' value of the idea in relation to the 'creator', In fact one must question the extent to which an idea can be said to have 'value' aside fiom its value to society. ldeas and language and knowledge are by their nature cognisable and valuable through communication, development and application. Drahos observes: "[ais abstract objects, ideas cannot spoil, but the opportunities that they confer may"". Perhaps, then, plums are not so different fiom ideas as we might imagine. When a basket of plums 'spoil' they can no longer be consumed. They might still erist, adperhaps for some reason the owner is happy to hold on to a basket of rotting plums. The point is that this is still waste$cl because the plums are no longer fit to be used in the rnanner in which they ought to have been used, i.e. plurns are meant to be eaten, and rottem plums can no longer be eaten. Do plums have an inremal mZzre, or is it their social valzre that decreases when they spoil? Surely the value of plums lies in the fact that they can be eaten by mernbers of society. As such the proviso is vioIated at the moment when the plums become inedible because the owner has prevented them from being able to fùlfil their social purpose. In the same way, when ideas can no longer be put to the use they ought to have been put to, there has been waste and the proviso has been violated. It seems to follow that those who appropriate ideas with a view to doing nothing with them infringe Locke's spoilage proviso. In orher words, whenever the copyright owner shelves an idea without publication or invokes copyright infnngernent with pure anti-dissemination motives, the proviso has not been satisfied. This certainly problematises Lockean appropriation in the particular scenario where the object of the copyright is purposefully withheld fiom the public. But it is arguable that the spoilage proviso has a much more far-reaching impact than this upon copyright law. Beanng in mind that the proviso, which prohibits someone from taking fiom the common more than they can use, is essentially concerned with avoiding wastefilness, there is considerable weight to the argument that appropriations of intellectual property are generally wasteful. According to Hettinger: "Since writings.. . are nonexclusive, this requirement prohibiting waste can never be completely met by intellecnial property. When owners of intellectual property charge fees for the use of their expressions ..., certain beneficial uses of these intellectual products are prevented. This is clearly wasteful, since everyone could use and benefir from intellectual objects conc~rrentl~."~~ 97 Drahos, A Philosoplzy of Iniellectual Properv, supra. note 55, at 5 1. 199 The purpose of this discussion has been to show the extent to which it has been too readily assumed, by those who wish to invoke Lockean theory to justiQ intellectual property, that the provisos are easily satisfied simply upon the basis of the nature of ideaI objects. In fact, there seems to be plenty of room to argue that, by its very nature, intellectual property falls fou1 of either one or both of the Lockean provisos. As part of an interna1 critique, this is perhaps the Ieast controversia1 way to problematise the Lockean argument for property rights in abstract objectss9. There are, however, additional problems that one can point to in the application of Locke's appropriation theory in this area. (cl Identifiin,~the Labourer and the Prodzrct ofHz3 Labozrr Firstly, of course, tfiere is the question of whether labour is actually involved at al1 in the act of 'idea-making'90. Certainly the type of labour involved seems very different from the manuaI labour envisaged by Locke. Leaving aside notions of divine inspiration, however, it seems fairly easy to characterise abstract objects as the products of labour, not least because copyright protects only the expression of the idea and not the idea itself? More problematic is the question of how much of the final product is actually attributable to the labourer. 88 Hettinger, Justr>ing lntellectual Properry, supra. note 69, at 45. s9 Drahos, A Phiiosophy of htellectual Property, supra- no te 55, at 50. 90 Hughes, The Philosopizy of Inrellectual Properry, szlpra. note 69, at I 17-1 8. 9 I The relevance of the idea/expression dichotomy in relation to the investment of labour does, of course. pose a question to which Lockean intellectual property theorists might be unable to respond: if property rights are acquired through labour, can this theory of acquisition satisfactorily explain the distinction drawn in copyright law between idea and expression? As David Fewer notes: "Newton and Einstein both contributed more original labour with more Iaudatory results in devising theones of physical nature than the vast majority of authors protected under copyright law ever could, and yet copyright law firrnly grounds the fniits of their labours in the pubIic domain. In contrast, your grocery list - if ever published - is secure from culinary piracy for the rest of your iife and another 50 years besides." (In Constirt~tiorralizitzg The natural rights thesis, which awards a property right to the labourer over his intellectual product, clearly ignores the contributions that have been made by those who went before him9'. As I have already argued, thoughts and ideas do not corne out of nowhere but are inherently linked to, and thus dependent upon, the thoughts and ideas that went before. Simply because authorship or another form of expression is necessary to give an idea value, allowing it to be comrnunicated and developed, it does not follow that the entire value of that product is amibutable to that labour. If a labourer has a right to the fmits of their labour, then this can only entitle the labourer to the value added Copyright: Freedom of pression and the Linzits of Copyrigfzt in Canada, 55(2)U. of Toronto. Fac. of L. Rev. 175 (1997)- at 188). This is but one example of the enormous divergence behveen the expenditure of labour and the acquisition of property rights under intdlectual property schernes. This divergence clearly casts doubt upon, at least, the descriptive accuracy of Lockean intellectual property theories- Drahos notes, supra- note 55, at 50: "on a strong justificatory nanirai rights rnodel of intellectual property, there would be no reason in principle why originators of ideas could not claim copyright protection in them." The idedexpression dichotomy, 1 would suggest, can be better explained in terms of, first, practical exigency, and second, recognition of the importance of a pubiic domain and society's interest in the free flow of ideas. By 'practical exigency' 1 simpiy refer to the need for there to be something concrete upon which copyright can take its hold. This requirement is present in even the earIiest versions of copyright: the Stature ofAtzne itself restricted copyright protection to printed works. Connected to this, of course, is the sheer impracticality of bnnging al1 ideas within the scope of copyright protection. As Easterbrook J. stated in Nash v CBS, hc., 899 F.2d 1537, at 1540: "Every work uses scraps of thought frorn thousands of predecessors, far too many to compensate even if the legal system were frictionless, which it isn't." (Quoted by Fewer, at 204). In addition to being a practical necessity, however, the dichotomy is a theoretical necessity, tied in witti the very foundations and justifications for copyright itself: it aids in the creation of the pnvate incentives required under the encouragement theory of copyright while protecting to the extent possible the public's interest in the free exchange, dissemination and aevelopment of ideas and information. In this way, the idedexpression dichotoniy can be compared to fair use: it shares a similar role in Iimiting the private monopolisation of intellectual products, knowledge and information from which the public ought to be fiee to derive benefit. It therefore niediates the divide between protection and access, as does fair dealing. The dichotomy operates prior to the system: its function is to determine to what copyright should apply in order to rnaintain an effective incentive system without unnecessariiy depriving Society of its interests in the common of ideas. In this way, the idedexpression dichotomy is best understood as another functional construct within the copyright systern; a constnict that is, in essence, a convenient legal fiction to aid us in the development and application of an incentive system. Of course, the extent to which the dichotomy has been misunderstood and misapplied (for many of those sarne reasons responsible for the misapplication of fair dealing), would be the subject for a separate paper. For interesting discussions about the complexities surrounding the idedexpression dichotomy, see E. Samuels, The Idea- Ekpression Dichotomy in Copyright Law, 56 Tenn. L. Rev. 32 1 (1989); see also, Alan Rosen, Reconsideritzg the Idedtikpression Dichotomy, 26 U -8.C.L.Rev. 263 (1 992). 9' 9' David Fewer, supra. note 9 1, at 187. through their intellectual labour9'. This is yer another illustration of how closely related are the myths of rornantic authorship and the assertion of private property entitlement as a reward for labour. Thus Hettinger wrïtes: "Given this vital dependence of a person's thoughts on the ideas of those who came before her, intellectual products are fundamentally social products. Thus even if one assumes that the value of these products is entirely the result of human labour, this value is not entirely attributable to anv par-ricrdar labourer- (or small group of labourers)." It seems almost to follow that a recharacterisation of the creative process, such as was attempted in the section 1, leads directly toward the conclusion that a property right cannot be accorded to an individual on the basis of individual labour9'. By according a property right over the abstract object, the historical, socid and cultural components of that object are overlooked. Once it is recognised, then, that every ideal object is necessarily the "joint product of human intellectual hi~tory~'the simple claim to right over the fniits of one's labour is emptied of meaning: the fniit of inteIIectua1 labour has no definable boundary. This not only reveaIs a practical difficulty in the application of Lockean theory to intellectual property, but also an important weakness in the deontological justification of property acquisition, for, as Horacio Spector explains: "[ilf the labour ernployed by a person does not offer an explanation for the total value of a commodity - and only explains the added value - then Locke's theory does not justifi ownership over the whole com~nodit~."~~ In effect, by concentrating soIely upon individual labour, the possibility of individual ownership over abstract objects paradoxically dissipates. The interdependent nature of 93 Hetîinger, Jusfrjjing Intellecrual Property, supra. note 69, at 37. 94 According to Hettinger "[a] person who reIies on human intellectual history and makes a small modification to produce sornething of great value should no more receive what the market wiIl bear than should the last person needed to lifta car receive full credit for lifting it." (Id. at 38). 95 Id. '16 Spector, An Outline of a Theory Jusrrfiing lntellecrr~afPropery Righrs, supra. note 69, at 272. human culture means that, if we define direct contribution of labour in terms of labour that enables the production of abstract objects, there can be no way to obviate recogition of the fact that such objects must be owned collectively because the result of joint labour9'. One way to avoid the difficulties of boundary definition in the case of abstract objects might be to define the labourer's nght in relation, not to the object upon which he laboured, but to the market value of the labourer's contribution. Even leaving aside practical difficulties regarding valuation, however, this approach mns into its own theoretical weaknesses. 'Market value' is a social construction that is dependent upon the subjective demand activity of others. A socially constructed phenornenon is clearly very unstable ground upon which to base a >zatici-a[nght, not to mention being theoretically untenable. Locke's theory entitles labourer's only to the product of their labour, and market value, being dependent upon variables far beyond the labourer's control, is not something that can be attributed to himg8. fd The Ouestion ofliberht The final line of 'interna1 critique' that 1 want to quickly address with regard to the application of Lockean theory to intellectual property, is one raised by Tom palmerg9 conceming the question of liberty. Palmer's position is essentially that, by virtue of the nature of ideal objects and their relationship to individual liberty, Lockean theory does 97 See Drahos, A Philosophy of hrelleccual Propery, supra. note 55, at 52-3. " Hettinger, Justrfiing Intellectual Properry, supra. note 69, at 33-9. See ah.Fewer, Constitutionalizing Copyright, supra. note 9 1, at 187-88. not support the acquisition of private property rights in the products of N~tellectrral labour. The first and fundamental pillar to Locke's theory is the belief that there is a right to self-ownership, and as such, the annexation of labour results in ownership over a thing, which is thereby assimilated to one's body (the violaticri of which constitutes infringement of one's ~iberty)'~'.According to Palmer, intellectual property restricts others' uses of their own bodies in conjunction with resources to which they have moral and 1egaI right; an intellectual property right, then, is a claim of right over how another person uses his body, a blanket control over the actions of others: "Liberty and intellectual property seem to be sornewhat at odds, for while property in tangible objects Iimits actions only with respect to particular goods, property in ideal objects restricts an entire range of action unlimited by place or time, involving legitimately owned property.. . by al1 but those priviIeged to receive monopoly gants from the tat te."'^' A basic Hofeldian analysis of rights reminds us of the importance of considering rights with reference to the correlative duties that they entaillO'. Undoubtedly, the tendency in the case of intellectual property has been to focus upon the perceived entitlements of the author without recognising the extent of the duties thereby imposed upon others. However, it should be recaIled that the power to exclude others from something means the power to alter another's liberties and duties with respect to that thinglo3. Although this is the case with al1 property rights, the difference is that, where tangible property - 99 See Tom G. Palmer, Are Parents and Copyrights Morallv Jrrsrrjied?: The Philosoph~vof Propery Riglzrs and Ideal Objecrs, 13 Harv. J. of L. & Pub. Pol. 8 17 (1990) at 827-35. '*Id. at 832-3. 101 Id. at 830. To illustrate this difference between property rïghts over tangibles and intangibles, Palmer offers the example of ownership in an abacus, id. at 83 1: while a property right would only entitle you to prevent others from using your abacus, an intellectual property right would prevent others from going away and making their own abacus through their own labour and with wood that they IegitimateIy owned. 'O' For a succinct account of Hofeldian rights analysis. and an example of its application to the realm of intellectual property, see Jererny Waldron, From Arcdiors ro Copiers, supra. note 76, at 842-44 er seq. 'O3 See Lawrence Becker, Deserving ro Own lntellecttral Propery, supra. note 63, at 62 1. nghts restrain action, intellectual property rights restrict liberty' What should be taken frorn this discussion for our purposes is a recognition- that there are differences between physical objects and abstract objects that may have a direct bearïng upon the applicability of Lockean theory to the latter. Certainly, the application of Locke's theory to intangibIes might not seem to be too much of a stretch, given that the root concept of ownership over one's body likely extends to one's mindI0'. However, if one of the fiindamental tenets of Lockean theory - namely liberty, which is itself founded upon the notion of self-ownership - is radically undermined in the case .of intellectual property, then there is a solid reason to doubt whether Locke's theory on the acquisition of property can be unproblematically transposed to cover the realm of abmstract objects. The viability of this transposition seems to have been too readily assurned by those who wish to rely upon Lockean notions of natural nghts in support of the case for intellectual property. In fact, this weakness in Lockean argument draws the natural rights-based vision of intellectual property into serious doubt: "[IJn copyright,. .. [tlhe right to exclude is not directed to an object in possession or owned, but is in vacuo.. .. It restrains the spontaneity of men wthere but for it there would be nothing of any kind to hinder their doing as they saw fit. It is a prohibition of conduct rernote from the persons or tangibles of the party having the right. ... It is a nght which could not be recognised or endured for more than a Io4 falmer, Are Patents and Copyrights Morally JXst@ed?, supra. no te 99, at 83 1 . 'OS It should, however, be borne in mind that, just because sornething might seern to be analogous, this does not mean the same theory can be assumed to apply. The fact that it is logically possible to extend the application of a particular theory, does not necessarily imply that it is appropriate. limited time, and therefore,. .. it is one which hardly can be conceived except as a product of statute.tr 1 O6 fi) fiterml Ct-itiqttes of Lockean In tellectual Propery ï7~eory The above discussion was concerned with the extent to which property rights in intellectual products can be satisfactorily explained and/or justified by the Lockean theory of property acquisition through labour. 1 hope that what emerged from this discussion was a sense that, even when accepting the prernises and the conclusions of Locke's theory of private property, the applicability of that theory to the world of ideal objects is not as uncontroversial as supporters of intellectual property tend to suggest. The following discussion, however, is concerned, not with the question of whether Lockean theory can be applied to intellectual property, but rather, whether it should be applied. Put another way, is Lockean property theory appropriate in the realm of intellectual property? fa) Rethinkin.4 Locke on Propertv: A Departrrr-e fiom Deorztolo,~ One possible starting place for this discussion is with the recognition that it is not entirely clear that Locke drew the libertarian conclusion attributed to hirn. By situating Locke's theory in the context within, and purpose with which, it was undertaken, it is arguable that the emergent theory has been misuilderstood and misapplied. In fact, Locke developed his property theory with the purpose of refuting the argument made by Sir 106 Per Holmes J. (concumng) in White-Snzirh Music Ptrblishing Co. v Apollo Co., 209 US. 1 (1 908) at 19 (superseded by statues as stated in Apple Conrpurer. Inc. v Franklin Compurer Corp., 7 13 F.2d 1240 (3d Cir, 1983). Quoted by Laurie Stearns, Copy Wrong: PlagiariSm. Process. Propero,, and rhe Law,80 Cal. L. Rev. 5 13 (1 992) at 537. Robert Filmer that God gave the world to Adam; an arsument that was ultimately used to support the unlimited authority of rnonarchs. Locke's acquisition of property thesis was thus intended to show how a common donation couId be individuated. With this as a starting point, Barbara Friedman argues that Locke was willing, and indeed intended. to undo private property rights once they had served this polemical purpose'07. According to Friedman's interpretation of Locke absolute property rights acquired through labour did not subsist once people had entered civiI society. In support of this position, Friedman cites a generally neglected provision of Locke's Second Treatise: "[Elvery Man, when he at first incorporates himself into any Commonwealth, he, by his uniting himself thereunto, annexes also, and submits to the Community, those Possessions which he has or shall a~~uire."'~~ Having left the state of nature and entered civil society, then, property acquired in the state of nature "which was before fiee", is now "to be regulated by the Law of ~ociet~"'~~.In civil society, the govemment is responsible for "the regulating of Property benveen the Subjects one amongst another,71 10 , and such government authority is to be exercised "as the good of Society shall require."' ' ' 'O7 Friedman, From Deoniology ro Diaiogue. supra. no te 57, at 164. See aiso. PaImer, Are Copyrights and Patetrts Morally Justrped, supra. note 99, at 832, arguing that Locke also intended his thesis as a response to Filmer's criticisrn of consent theories such as Pufendorf's, which relied upon the fact that there would always be at lest one person in society to withhold consent. Lockean acquisition of property shows a way in which "Men might come to have a property in several parts of that which God gave tMankind in common, and that without any express Compact of ali the Cornmoners"; Locke, Two Trearises of Governmertr (P. Laslett ed. 1970) (3rd ed. 1698) at 327. 'OS Locke, ~ohkII., 9 138; quoted in Friedman, supra. note 57, at 162. Icr' Id. 110 Book 11, 139; quoted in Friedman, srrpra. note 57, at 162. Ill Book II, § 13 1; quoted id. at 163. This depamire from the state of nature can therefore be regarded as marking the end of the role of deontological private property in Lockean theory. The '_good of society'. or the common good, was the criterion against which the legitimacy of a govemrnent was to be measured in determinhg whether revolt was warranted.' l' Upon this basis, Friedman argues that, within civil society, a person7s property consists only of "goods, which by the Iaw of the Community are their~.""~As such, what begins as a deontological explanation for the acquisition of private property from the common, becomes a consequentialist theory for the regulation of property in a society such as ours. The above line of argument is important, first, because it situates Lockean theory - so often decontextuaiised and misstated by ardent supporters of private property - within a purposive fiamework that dilutes the force of the strong natural rights approach. Second, this approach adds strength to a consequentialist vision of the institution of private property (and intellectual property in particular), by recasting the role of the common good as pivota1 in the development ofposirive law in this area. As such, it is a possible reading of Lockean property theory that is worth bearing in mind: "The advantage of taking this tack is that it does not express the concern for human well-being in deontological formulations that preclude the investigation of which Iaws will, as an ernpincal matter, advance the common good. -91 II It is certainly true, then, that a strong justificatory form of the labour theory of property is not the only kind of theory of intellectual property that might be extracted from Locke's II2 The only definition of the common good offered by Locke was what "the good, prosperity and safety of the society shaIL require", (Book II, 9 130; quoted id., at 164). Il3 Locke, Book II, 5 138. See id., at 164. thesis"'. hdeed, various versions of Lockean theory take the position that private property institutions are maners of positive law and convention, regulated on the basis of utilitarian concems and with a view to rnaxirnising the welfare of the ~ornrnunit~''~.Such analyses lend support to the depamire from deontological explanations of intellectual ProPertY - On this basis, then, and on the basis of the above 'interna1 critiques' of Lockean intellectual property theory, there seems to be ample ground upon which to assert that deontologies of intellectual property are descriptively unsound. The remainder of this discussion will attempt to establish that, more importantly still, deontological theories of intellectual property are prescnptively undesirable. fb) The Dangers ofa Lockean Analvsis In Chapter 1, 1 argued that concepts of natural right and property for labour were introduced into the debate concerning authors' rights as a means of rhetorical leverage, ideal for the fûnctional purpose of protecting the interests of the booksellers. As such, the issue has been, not so much whether authors have natural rights in their work, as whether "'Id. at 167. IlS Drahos, A Philosophy of Inrellecrual Prope-, supra. note 55, at 53. Ili> See. e.g. K. Olivecrona, Locke's Theos, ofçlppropriation, in R. Ashcrafi (ed.), John Locke, (199 1). Olivecrona argues that acquisition of private property through labour is confined to the penod in the state of nature described as the 'age of abundance'. By contrast, in the 'age of scarciry' property is a rnatter of convention, dictated "by Compact and Agreement" (Locke, Book II, $45). As a regulatory phenornenon. property rights are then dependent upon positive Iaws justified by utility (Drahos, A Philosophy of Intellecrual Pt-operry, supra. note 55, at 53). See also, Anthony Reese's interesting discussion of Robert Hale's 'Rent-Theory Lockeanism' in Reese, Reflections on the Inteliecrual Commons: Two Perspectives on Copyright Duration and Reversion, 47 Stan. L. Rev. 707 (1 995). The cmx of Hale's rent theory is a positivistic characterisation of property regulation, which denies the possibiIity of pre-political property rights enforceable against the State. it is possible to squeeze authorship and copyright into the discourse of natural rizhts and private property for the purposes of advancing a particular set of interests. When we attempt to squeeze something into a mould that it does not fit, we cannot help but to distort and disable it: "[A]ll legal doctrines share their identity as metaphor .... [Al11 too often legal metaphors are not used in combination to enlarge Our understanding, but in isolation to constrict it. A metaphor can distort our analysis by squeezing it into a mould for which it is not suited. The power of a metaphor to shape out understanding is profound.. ..7, 117 Bearing this is rnind, it seems Iikely that reliance upon proprietary concepts is not simply a harmless means of providing an arguably plausible explanation for intellectual property; rather it is an attempt to squeeze intellectual property into the boundaries of traditional property in a way that risks misshaping the concept and our approach to it. Because copyright has continually been referred to, and has gradually become understood, in terms of the aggregate notion of 'rights', it seens to have become solidly entrenched in the discourse of private property. The pervasiveness of this discourse has succeeded in obscuring the origins of copyright and the public goals that lie at its core. Author-oriented reasoning - the inevitabie result of a legal doctrine cast in terms of the author's right - has produced a pattern of ever-expanding protection of intellectual property. Focusing on authorial interests causes us to forget that copyright is not absolute, that it is a statutory concept and always has been, that it has a normative function, and that this function is concerned with the interests of the public. It is cIear that IliS tearns, Copy Wrong, supra. note L 06, at 53 8-9. 210 the dogrna that copyright exists to protect the natural rights of authors to the fniits of their labour has deformed Our understanding of copyright by causing us to ignore its fiindamental nature. Keith Aoki has noted that the continued proliferation and strengthening of intellechial property within the discourse of natural proprietary rights is sornewhat ironic: while poIitica1 and legal theorists have been rapidly 'disaggregating' the concept of pnvate property per se, the notion of private property rights in relation to abstract objects appears somehow to have emerged unscathed"'. In the area of traditional private property, legal theonsts such as Robert ale"^ have highlighted the analytical irnpossibility of insisting upon a characterisation of property rights as prepolitica1 or absolute. Instead, they have argued for the reimagination of property as imbued with political, social and economic considerations, socially produced and amenable to alteration or modification by govemment and judiciaryl". Once the institution of private property has been reimagined in this way it becomes clear that, rather than existing in the -private' domain presumptively beyond the control of the state, the creation, protection, and promotion of private property is inherently dependent upon the exercise of state power. Ils See Aoki, Itztellectual Proper~and Sovereignry, supra. note 22. Aoki notes that the irony is compounded by the fact that, in the 'hey-day' of private property absoiutism, copyrights were an exception; they were understood to be "Iimited rights promutgated pursuant to public regulation ...." (At 1338). 119 See e-g. Hale, Coercion and Distribution in a Supposediy Non-Coercive Srate, 38 Pol. Sci. Qu. 470 ( 1923). This argyment deserves to be taken seriously in the field of intelIectua1 property. Deeply entrenched within the modem rhetotic of intellectual property is the notion of private property as a right with pre-societal and pre-institutional existence. The clah to a prepolitical natural right is a powerful one, and one that, if recognised, obscures the political force of the Iaw, and diswises the dynarnics of the coercive relationship between property owners and non-owners. Metaphors are dangerous things at least insofar as we forget that they are no more than metaphorical. When we become hypnotised by the label"' of 'property', we omit to question identities. to look for distinguishing features, and to take into account the broader legal, social and political context within which policies are made and decisions are taken. Property rights are conceived of as entrenched and fundamental, and as a consequence, property interests are accorded a legal and moral primacy over other kinds of rights and interests- As soon as we do this in the area of copyright Iaw, we have departed from the foundations upon which it stands- It is beyond the scope of this paper to undertake a Realist-type dissection of intellectual property. I do not intend to show whose interests, in the political and ideological community, the propertisation of abstract objects is designed to further"'. Such a 120 Ao ki, itzrellecrzral Property and Sovereigrrv, supra. no te 22, at 13 1 8-2 1 . See also Kenneth Vandevelde, Tite !Vew Propers> of rite Ninereenrlr Cenrzrryz The Developnrenr of the Modern Concept of Pruper~,29 Buff. L. Rev. 325 (1980), at 328-30. "' This expression was used by Judge Frank in Graz v Hczrrir, 198 F.2d 585 (Zd Cir. 1952) at 590-1, who said (objecting to the term 'moral right') thatz "Hypnotized by a label which emphasizes identities, we rnay be led to ignore differences .... For with it's stress on uniformity, and abstraction or generalization tends to become totaIitarian in its attitude towards uniqueness." (Quoted by Steams, supra, note 106, at 539). '" It might, however, be worth suggesting that this process of propertisation has some important links to individualism and to capitalism. It is certainIy relevant that the role of the 'author' tends increasingly to be played by a corporate entity, Moreover, as Aciki notes: "While we pay homage to John Locke and his theories of gaining a property right in unowned materials by adding one's labor, the average worker discussion would undoubtedly be worth undertaking in the search for causa1 expIanations for the propertisation of intellectual property. However, my aim here is limited to the normative issue of whether we should continue to accept the subtIe but persistent invocation of traditional property theory in the realrn of intellectual property. What damage is the background hum of property rhetoric doing to copyright and, in particular, to fair use? /cl The Effects ofPropei-rv Theon: Upon Copw-ieht ami Fair- Use Firstly, the emphasis upon natural proprietary rights as some pre-social phenomenon supports a false bifurcation between the public and the pnvate domains. Aoki writes that, by wrongIy locating intellectual property in the latter, a picture is created that "distorts, discounts, and marginalises the extent to which the state is involved intimately with the creation, protection, and promotion of the value of this supposedly private property"'23. The nature of copyright, however, requires that a fünctional approach is expressly adopted, which in tum necessarily requires that the state adopts a pro-active stance with respect to the production and dissemination of cultural objects. Only where the state adopts such a stance can it be possible to explain, justie and expand the scope of fair use. The author-reasoning produced by adherence to the concept of private property allows us to become fixated upon the dernarcation and protection of the boundaries of authorial property. It hardly need be said that such a fixation precludes adequate consideration of the interests of those who wish to make use of this property. In other alienates his labor at a fairly low hourly wage and the products of his labor belong to the employer." ((Intellecrual) Property and Sovereignty, supra. note 22, at 1335). '=id., at 13 1 1. words, it drastically weakens the foundations upon which the doctrine of fair use is erected. In a similar vein, the fair use doctrine requires cognisance of the way in which "cultural production, consurnption, circulation, and transformation contribute to the production of intellectual property."l" Where intellectual property is confined to the private domain of individua1 authors' rights, these processes of cultural production becorne legally and morally insipificant. There is, therefore, no obvious or acceptable basis upon which to expound the necessity of a concept such as fair use. The propertisation of copyright not only relocates copyright in the pnvate domain, but, more importantly still, it redefines copyright along individualistic lines. The histonc origination of copyright and the normative aims that its development reveals, clearly cast copyright as a limited right subordinated to social purpose. Notwithstanding this fact, however, there is an overriding "tendency to develop robust doctrines of individual moral entitlement even within the social policy frarne~ork""~.This tendency is, in many ways, the consequence of the continuing grip of natural law rhetoric upon intellectual property laws; a grip that has proved remarkably strong in spite of the attempts of social policy discourse to lessen its hold. As Jeremy Waldron observes, the simultaneous existence of both justificatory theories owes its survival in large part to the belief that the two are not opposed, and perhaps even converge in the case of copyright"6. While this clearly remains a prominent assumption in copyright discourse, I would argue that even this understanding - whereby the interests of the author and those of the public are always already balanced in the protection of copyright - has been gradually and inevitably altered. Once two separate and apparently equally meritorious sets of interests are portrayed as coinciding in one legal doctrine, the convenient picnire of an exact overlap is diff~cultto maintain. The result is that the interests are gradually perceived to diverge, eventually assuming an appearance of interests in conflict, requiring a balance to be found and maintained by the lawl'' . The problem with this picture, then, is that what appeared initially as a convenient coincidence of interests confksed the matter of social policy objectives by conceding, at the same time, its role in the protection of authors' natural rights to the hits of their labour. By definition such rights must appear prior to alternative and conflicting interests. As such, it is hardly surprising that the result of a simultaneous focus on the interests of author and public has been a gradua1 elevation of the former over the latter. It would also seem, then, that, integral to this shifi in favour of author reasoning, is "the natural tendency to reiQ rights even where they are set up and justified on purely utilitarian ground~."'~~This process of reification lead to what might be termed a 'rights- fetishism', whereby the rights corne to be regarded as independent absolutes, as ends in thernselves. The end result is that what began as a matter of social policy - desirable to 115 Jeremy Waldron, From Authors ro Copiers, supra. note 76, at 850. lx rd. WaIdron cites the opinion of James Madison, expressed at the framing of the Constitution, that "[tfhe public goodfuily ... coincides with the daims of authors." (Quoted in The Federalisr, No. 43, at 279. '" Lem Seluer, Exemplions and Fair Use in Copyright: The Erclusive Rights Tensiorzs iri the 1 9 76 Copyrighr Acr (1978), at 15. 118 Waldron, From Aurhors to Copiers, supra. note 76, at 85 1. the extent that it provided an incentive to authors - becomes firmly situated within the concept of naîural nght and moral entitlement. As Waldron explains: ''Flor various understandable reasons - though reasons which de@ logical ... analysis - social policy arguments for intellectual property tend to set converted into individualistic arguments, and thus to be assimilated much more closely to the rhetoric associated with rnatenal property rights. 77 1 29 This move toward property rhetoric constitutes a moment of departure fiom social justification and towards individualistic justification for copyright. As such, rather than moving frorn deontology to consequentia~ism,the movement is undergone in reverse; the elevation of author-reasoning on this basis effects a shift £?om consequentialism to deontology. This reverse motion has serious consequences for the fair use doctrine. 1 have argued that the motivations behind fair use, and thus its theoretical justifications, lie in the category of social justification and consequentialism. It follows that, by misrecognising the theoretical justifications of copyright law as essentially individualistic and deontological, the foundations of fair use are crucially destabilised within the copyright framework. A theory of copyright cast in individualistic terms is not capable of accomrnodating a socialistic perception of fair use as an integral mechanism within the copyright structure. As a result, fair use is wrongIy situated as a marginal construct that conflicts with the basic foundations of copyright law, Iocated outwith the boundanes of copyright's justificatory purpose. Due to the primacy of natural rights and concepts of desert, and accentuated by a tendency towards rights-fetishism, a conflict between the interests of author and society will be decided in favour of the author; the force of "" Id. at 856. property rhetoric enables its triurnph over the policy-driven public goals embodied in the doctrine of fair use, A rights-based characterisation of copyright, then, renders the fair use doctrine radically incongruous with the motivations of the copyright system. As we saw in previous chapters, this incongruence entails a marginalisation of fair use, which metamorphosises into a narrow exception to the general principles of copyright protection. In contrast, were the justifications and theoretical bases of copyright to be squared up with those of fair use - as they should be (and in fact always were) - then copyright could incorporate fair use as part of its interna1 mechanism for furthering its social policy aims. Copyright could then being to berter perform it social fiinction and to &Mil its consequentialist airns. IV. Conclusion The purpose of this chapter has been to draw to the fore the philosophical assumptions that underlie copyright and that tend to subtly inform Our understanding of the role and function of the copyright system. Assurnptions about authorship and the process of creative production explain much of our tendency towards over-protection of the author's interests. The interests of those other than the author-genius are belittled by a resultant failue to sufficiently comprehend the nature of cultural dialogue. The O bjecti fication of the concept of the 'work' - entailed by the vision of Romantic authorship - obscures the nature of the relationship between the producer, the text, and the audience. The abstraction of the text is sufficient to enable propertisation. The propertisation of the author's work has led us towards a flawed and inappropriate application of Iabour- acquisition theory and adoption of naturaI rights rhetoric. The pewasiveness of this rhetoric in intellectual property theory has entailed an author-oriented reasoning that distorts our understanding of copyright and privileges the economic and 'private property' interests of the author over the social goals that, alone, explain and justiQ the existence of a copyright system. The nature of language and law means that we will always be dealing with metaphoncal constructs. Of course, there is nothing wrong- with this in itself, but, by failing to t-ecognise legal conceit in the realm of intellectual property, we are placing the social goals of the copyright system in jeopardy. The point 1 wish to make is that we must take cognisance of the metaphoncal nature of the legal concepts with which we are dealing, and constantIy re-evaluate their appropriateness for the purposes they are intended to further. Without being subject to such examination, there is a serious risk (and one which has Iargely been realised in the case of copyright law) that metaphor wiI1 take over our analysis, constraining it, distorting it, until we find ourselves far removed from the goals we first sought to achieve. Of course, simply deconstructing the legal concepts that pervade copyright doPa cannot, in itself, provide an ethics for making decisions about copyright protection and fair use, nor can it recognise the need for prioritising some issues and meanings over others. However, the disaggregation of these concepts, and an acknowledçement of their distortative influence upon the legal imaginary, will afLow us to return to a more appropriate theoretical starting-point. From here we can reconsider the social aims of copyright law and reidentiQ the best route towards their attainment. If copyright is to be justified, the contours of the system must be defined in terms of its normative agenda. The development and application of copyright Law must then be limited and guided in ways consistent with the object for which the system was established. As an instrumental construct the copyright regime should be systernatically dnven by its purpose with express consideration given to its social airns and imperatives. It seerns to me that, from this theoretical starting point, the role and the importance of the fair use doctrine, as an integral part of a functional copyright system, will be abundantly clear. 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