Fair use defined (was: Re: Stallman Admits to Copyright Infringement)
Do not put too much emphasis on the "fair use" concept. It is
deliberately very vague, much like the concept of "due process of law."
Exactly what it means in any particular situation can be very hard to pin
down without actually litigating the issue.
I would argue that there are extreme cases where "fair use" would allow
the publication of an entire work over the objections of an author where
questions of historical importance or public policy were at stake. A
"fair use" claim cannot be decided by the extent of the excerpt.
To give a notorious example, Adolf Hitler died in 1945, meaning that "Mein
Kampf" would have fallen into the public domain in the US only in 1995.
Upon his death, the copyright of Hitler's book passed to his heirs, but
they obviously were primarily concerned with suppressing publication of
the book. We are not talking about reaching into the man's typewriter and
disseminating an unpublished manuscript, but rather of putting an
historical document into circulation rather than letting it be suppressed
by an embarrassed family. While one might reasonably argue that the world
would be better off if "Mein Kampf" were suppressed, no one would argue
that access to it should be denied to legitimate historians.
(The exact copyright legacy of "Mein Kampf" is actually considerably more
complicated than that, but is mostly irrelevant for this discussion. In
fact, the government of Bavaria makes a practice of suing anyone who tries
to put "Mein Kampf" into print, except in the two countries, the US and
the UK, where that would be legally hopeless, and some very odd legal
results have been obtained. For details, see:
http://www.algonet.se/~andersa/ad/copyreich/index.eng.html
As I understand the present legal situation in Sweden, for example, the
courts have held that someone owns the copyright but they cannot identify
who does, thereby completely preventing publication because no one is
recognized as having legal power to authorize reprinting.)
A similar situation has arisen with the unpublished manuscript of Adolf
Eichmann, written during his imprisonment in the early 1960s. This
document was released by the Israeli government only a few months ago in
connection with a defense request in the libel case brought by David
Irving. The copyright is probably still in force, and it is not entirely
clear who owns the work and, therefore, has the right to authorize or
suppress publication. Although Eichmann himself intended the document for
publication -- it is, after all, entirely a self-serving version of
historical events -- it seems evident that his heirs would prefer that it
be locked away for as long as possible. Putting it into the public record
through a British court proceeding creates an interesting conflict between
public policy and copyright interests. There is a good summary at:
http://www.guardianunlimited.co.uk/Print/0,3858,3969076,00.html
Further, there is some acceptance in the US that the "fair use" doctrine
has a Constitutional basis, and that the statutory language is merely
recognition of a right which exists independently of statute. This is
essentially the issue being raised by the Eldred v. Reno case, which seeks
to overturn the Copyright Term Extension Act.
-- Mike
On 2000-05-18 at 16:48 +0100, Jules Bean wrote:
> For example, on page 28 [1] of circular 92, we find paragraph 107.
> Paragraph 107 says that (heavily edited, it's long, go read the
> original) "... fair use of a copyrighted work, including such use by
> reproduction in copies of phonorecords or by any other means specified
> by that section, for purposes such as criticism, comment, news
> reporting, teaching ... scholarship or research is not an infringment
> ... factors to be considered shall include ... purpose and character
> of use ... commercial or ... nonprofit educational .. nature of the
> copyrighted work ... effect of the use upon potential market for or
> value of the copyrighted work..."
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