Rumors of a 'Whisper Campaign' Forming Against Fair Use

An anonymous reader writes "Ars Technica reports that a group of companies and organizations it calls 'big content' is currently engaged in a worldwide 'whisper campaign' against Fair Use. 'The counter-reformation in question takes the form of a "whispering campaign" in which ministries in different countries are told that plans to expand fair use rights might well run afoul of the Berne Convention's "three-step test." The Convention, which goes back to the late 1800s, was one of the earliest international copyright treaties and is now administered by the World Intellectual Property Organization (WIPO).'"

Comments

The "3 steps"

[BadAnalogyGuy]

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.

According to Wikipedia, the three steps are:

1) certain special cases
2) do not conflict with normal exploitation of the work
3) do not unreasonably prejudice the legitimate interests of the rights holder

I'm no lawyer, so I don't have the background to understand that kind of gobbledygook. Maybe that's the problem. Maybe laws written for the sake of the governed should be written in a language they understand.

Re:The "3 steps"

[BiggerIsBetter]

Maybe laws written for the sake of the governed should be written in a language they understand. Are any laws truly written for the sake of the governed?

Re:The "3 steps"

[Anonymous Brave Guy]

I find your post interesting, primarily because it sounds like a reasonable interpretation of the three steps, yet it's quite different to what I'd come up with (as someone who has been actively involved in the consultations about this topic in the UK recently).

In particular, your version implies that anything that may cost the copyright holder any income cannot be fair use. I would qualify that (and I do think the phrasing of the TRIPS three-step test supports this) by saying that normal exploitation does not mean the same as absolute control. We could argue, for example, that selling a second full-price copy of software to someone because their installation DVD got scratched would be profitable for the copyright holder if making back-ups were illegal, but I think most people would consider this excessive exploitation and the law in most jurisdictions reflects this.

Getting back to the proposals at hand, I think if these rumours are true, the big content guys are going to have a tough time. What's happening right now is that several countries are seeing the balance of copyright tipping toward the copyright holder and finding their laws out of sync with common perceptions of what is reasonable (and done routinely, regardless of legality, by much of the population). We've had a string of investigations over the past two or three years, such as Gowers in the UK, which have proposed changes to redress the balance. The US actually has a pretty good deal with their fair use; while DRM/DMCA issues are screwing things up, the law is otherwise pretty reasonable and the four tests are fairly transparent. In most other countries, the law is not so general, and commonly expected behaviour like making back-up copies and format shifting is actually illegal in several places!

Now, we're seeing governments actively start to implement those proposals. For example, the UK government is consulting on a proposal to legitimise format shifting, which is technically illegal at the moment even though everyone does it and media industry organisations have stated publicly that they will not chase anyone to court for doing so. (The closing date for the consultation is today, so if anyone else thinks the exception should be far more general than just format shifting, get those e-mails in to the consultation response address!)

I suspect this is just making mountains out of mole-hills, though. The whole point of fair use is that there are plenty of things you can reasonably do with content you have legally obtained that are beneficial to you yet cause no unreasonable damage to the copyright holder, and the law should allow you to do these. No-one is talking about, for example, legalising P2P file sharing in breach of copyright or letting someone buy one legal download and then burn it to many CDCs and sell them on separately, which might actually do some real damage to the big media industries. It's hard to see how Big Media can credibly argue that the changes proposed in places like the UK are in violation of the three-step test when US fair use has allowed them since forever, the US is also a TRIPS signatory, yet until now Big Media has not attacked this position.

Berne Convention can go piss up a rope

[sm62704]

The rich bastards who own the corporations really rule the world, but they're working hard to quell a counter-revolution. They are NOT patriots od any country, no matter what country they lay claim to. They only care about their own personal wealth and power and the rest of us can go to hell as far as they're concerned.

Fair use? How about "expanding" fair use in the US to what the founding fathers envisioned, and "limiting" the endless copyrights that would have appalled them?

I have decided that I will respect no copyright older than ten years old, period. I urge everyone else to join me. I think twenty is reasonable, but damn it THIS IS WAR.

Oh yeah- I refuse to honor ANY copyright held by a corporation. Only a writer or painter or other artist should hold a copyright. Disney can go to hell (actually he probably already did).

Yeah, I'm in a bad mood. So sue me.

-mcgrew

PS- I hold copyrights. I have two ISBNs that should have already passed into the public doimain. I'm not against copyright law, only the INSANE copyright laws that are in effect now.

Re:Berne Convention can go piss up a rope

[Yvanhoe]

The problem is lobbying, or "corruption" as it is called in other parts of the world. It is almost impossible to make disappear but one can at least try to make it illegal.
Support Lawrence Lessig's Change Congress movement.

Re:That's not how I heard it...

[Otter]

The irony of completely fact-free scaremongering about a "whisper campaign seems to have been missed by all parties...

Re:Some possible issues...

[Anonymous Coward]

So 6 guys get together and form Little Green Man Entertainment Ltd and make a computer game and sell it. But not to *you*. No, *you* pirate it because you refuse to honor any copyright held by a corporation. To buy these guy's game would compromise your *principles*.

This illustrates the problem with the thinking. Corporations are made of people and corporations are set up by people so the people can work together in an organized way. Ever heard of "United Artists". It's one of the big studios now, but it was set up by actors and other "artists" who got tired of the man taking their money. Now they are the man. Is it fair? Should they be able to use the money they made doing the real work to finance the work of other artists? Really what is the difference between a corporation investing in a film and an artist giving a helping hand up to the next generation of artists? Not much, in practice.

it's interesting they are digging this deep

[circletimessquare]

it is interesting to see ministers and legal wranglers reaching back this far in copyright history for a sense of stability and coherence in copyright law. it shows desperation, confusion, fear. however, what the internet has done to copyright is yet a more fundamental reordering of the landscape than even law going back to the 1800s

it is simply that at one time, the means of production and distribution of media was confined to a few players. this meant that agreeing on rules, and compliance and enforcement was relatively simple and straightforward. as recently as the 1980s, if someone was counterfeiting vhs tapes, for example, the operation was ponderous, slow, required a heavy initial investment, and was relatively easy to trace and shut down those few random players. this limited piracy to a few hardy organizations

but today, the power of global distribution that was once confined to the likes of bertelsman and sony is in the hands of every college kid. enforcement? ha! compliance and agreement on the rules? ha!

the assumptions about distribution that created copyright law as we know it is so fundamentally altered as to be so alien a landscape that copyright law is simply completely and utterly destroyed. for those of you doubting this, you are simply in denial. you can't make a law that is impossible to enforce. well, you can, legislative bodies do it every day. but it simply doesn't mean anything, it's hollow, it's a joke. that's what our copyright law has become

the last ten years has simply been a slow process of awakening the world to this fact. the next ten years will simply be more awakening to this fact, everyone getting on the same page: copyright law is broken. utterly

this is what they mean by disruptive technology. the internet destroyed copyright law by making every single individual in 2000 have the same distribution power that was confined in 1990 to sony and bertelsman

obviously, rights and morality and ownership in the realm of media are issues that are still valid. these issues still need to be addressed legally. but the legal and compliance framework around these issues will need to be built almost from scratch, and copyright law as we know it must be thrown out almost in its entirety: all the basic assumptions it is founded upon are completely reordered

personally, i think some form of copyleft a la "free" software will be the basis for our new legal framework about all media and distribution: music, books, movies, etc

Re:Only the US has fair use anyway...

[Tom]

there has been exactly 1 country that has EVER recognized fair use: The US. No country except for the US has ever recognized fair use as a legal theory. You have no idea what you're talking about, do you?

Other countries don't use the same term, and the exceptions aren't all the same, but "fair use" is a very common concept.

Few countries make the use of snippets for review, criticism or quotation illegal, for example. The details vary, but the basic principles are pretty global.

Some countries go considerably further than the US. Over here in Germany, for example, I can legally copy a CD for a friend. That's called the "Privatkopie" ("private copy") and is the law's acceptance that people will do these kinds of things anyway, so within some limits (very few copies, and for personal friends only), it's allowed. (and yes, it's under attack from the copyright lobby)

Copyright laws are slightly different in every country, and with so much variety, every claim that something is a world-only is almost guaranteed to be a lie.