Fair Use is Not a Constitutional Right

jmichaelg writes: "Ed Stroligo at overclockers.com has written an article on the fair-use provision of the 1976 copyright law. He goes into some depth on the difference between a constitutional right vs. a legal right as well as covers the Betamax, Napster and Rio cases. It's a well thought out article and definitely worth the read."

Comments

Sources of RIghts

[bagman]

The author of this piece neglects to mention how and why a section relating to fair use was added to the 1976 Act. Fair use was not created by Congress. It was created by federal judges as an equitable doctrine that "permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (some bracketing, internal quotation marks omitted)).

The Copyright of Act of 1976 was intended to preserve the judicially developed doctrine of fair use and "not to change, narrow, or enlarge it in any way." (4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT 13.05, at 13-150 & n.7). Fair use is still very much a creature of the courts. Congress identified a list of four factors that the courts must consider, but there are no bright line rules.

The judicial origins of the doctrine lead one to ask the question, if there were no fair use doctrine, would the Constitution obligate courts to come up with one? There is a strong argument that fair use is mandated by the Constitution. It goes as follows:

U.S. CONST. art I, 8, cl. 8 reads: "The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Thus, Congress's power in creating copyright is arguably limited to those actions that promote "the Progress of Science and useful Arts." Fair use doctrine prevents copyright law from serving as a bar to progress. Thus, if courts did not recognize a fair use defense, the Copyright Act, as applied in certain cases, would be unconstitutional because it would effectively prohibit activities which the Congress has no constitutional authority to prohibit.

I like this argument better than those that rely on the First Amendment, because it does not need to reconcile conflicts among different provisions, relying instead on the copyright clause itself.