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New Report: Misinterpretation of 'Fair Use’ Stifles Free Expression

For Imme­di­ate Release
Monday, Decem­ber 5, 2005

New Report: Misin­ter­pret­a­tion of Fair Use Stifles Free Expres­sion
Artists, Writers and Blog­gers Targeted for Using Copy­righted Mater­ial

New York, NY Today, the Bren­nan Center for Justice at NYU School of Law released a new report, Will Fair Use Survive? which docu­ments the increas­ing number of artists, writers, blog­gers and others who are unjustly targeted for using copy­righted or trade­marked mater­ial without permis­sion.

Fair use allows anyone to publish, copy, distrib­ute or repro­duce part or all of copy­righted work without permis­sion for the purpose of comment­ary, news report­ing, criti­cism, and schol­ar­ship. There are similar free expres­sion safe­guards in trade­mark law.

Marjorie Heins, co-author of the report and founder of the Free Expres­sion Policy Project (FEPP) at the Bren­nan Center explained: Fair use is an essen­tial part of our polit­ical and cultural life. Requir­ing permis­sion every time someone copies a docu­ment, or uses a quote or image to produce a new work, cripples our abil­ity to share ideas.


Although copy­right issues are in the news every day from battles over online music-shar­ing to plans for the Google print library threats to fair use actu­ally present a greater chal­lenge to creativ­ity and demo­cratic discus­sion, she added.

The report also docu­ments the surge in take-down notices from copy­right owners to Inter­net service providers to remove mater­ial from their serv­ers, based on their good faith belief it is infringing. The 1998 Digital Millen­nium Copy­right Act (DMCA) allows compan­ies to send these notices without any legal judg­ment support­ing their good faith belief. Artists and others also receive threat­en­ing cease and desist letters from compan­ies claim­ing copy­right or trade­mark infringe­ment.

The report shares firsthand stor­ies from artists, schol­ars, and others, many of whom have forfeited their rights to fair use for fear of being sued. This pres­sure stems from a clear­ance culture, partic­u­larly in the film and publish­ing indus­tries, which ignores fair use and forces every­body to seek permis­sion which is some­times denied and even if it is gran­ted, often entails high license fees in order to use even small amounts of copy­righted or trade­marked mater­ial. The report also includes an online survey, phone inter­views, and stat­ist­ical analysis of more than 300 cease and desist and take down letters.

Film­makers and schol­ars have already praised this compre­hens­ive report on the threats to fair use today. Gordon Quinn, maker of Hoop Dreams, writes: Whats great about the Bren­nan Center report is it high­lights how this issue is affect­ing newer medi­ums, like the Inter­net. – This report is part of a wider move­ment to educate people about fair use, and its going to help us users organ­ize and reas­sert the right to fair use. Biograph­ers Hazel Rowley and Roxana Robin­son also praised the report; Robin­son said: Fair use makes crit­ical discourse possible, and this lively and thought­ful report makes fair use more likely to survive.

To protect and strengthen fair use, the report recom­mends: Creat­ing an inform­a­tion clear­ing­house, work­ing with ISPs to help users prepare counter take-down notices; and chan­ging the law to reduce penal­ties for guess­ing wrong about fair use.

Click here for a PDF of Will Fair Use Survive? Free Expres­sion in the Age of Copy­right Control.