The desire to protect the rights of creative people to their works has been an ongoing struggle for several centuries beginning with the first copyright law in 1710, the Statute of Anne. This British statute inspired the enactment of the United States’ copyright law, as well as all the copyright laws of countries which enacted these laws, and was meant to be “An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during” a certain period of time. The justification for its enactment was written in its preamble that “authors…and their families” were “too often” financially ruined by those who pirated the written work of authors (“The Statute of Anne”).
Later, in 1787, the newly established United States adopted parts of the British statute into the Constitution with a similar purpose “to 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” (“Copyright Timeline”). These laws established the right of a creative person to protect his or her intellectual property. Intellectual property “refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce,” according to the World Intellectual Property Organization. Intellectual property rights is the broad term for the various forms of protection that guard the rights to this property, these forms are known as copyrights, patents, and trademarks. Violations of these intellectual property rights in copyright are known as copyright infringements. Copyright infringement is often mistakenly thought to be plagiarism. Plagiarism is when a person takes the work of another person and claims it as his or her own. Copyright infringement, on the other hand, refers to the act of making a copy of someone else’s work without their permission. This would include making copies of textbook pages, artworks, quotes, sound bites, etc. (Saunders).
As they originally stood, the Copyright Clause of the United States’ Constitution and the Statute of Anne only protected those whose works had already been published and thus it neglected the rights of students, educators, critics, and reporters as well as future authors and inventors. This is due to the nature of learning as well as human creativity, which is that “all intellectual creative activity,” and intellectual exploration, “is in part derivative.” Humans cannot create from nothing, and so there is “no such thing as a wholly original thought or invention” because in order to create and learn, people must build upon the works of others. This derivative nature of creativity and intellectual exploration presented a major problem for the law, which was then handed off to the courts to solve. It was decided by the British courts that “certain instances of unauthorized reproduction of copyrighted material…would not infringe” on the rights of the copyright holder (Leval). This would become known as “fair use,” which was later expounded upon in America by Justice Joseph Story who “examined the justifiable use of original materials” along with the rest of the Massachusetts Circuit Court in the 1841 Folsom v. Marsh case (“Folsom v. Marsh”).
This approach to the fair use question was later put into legislation and became part of the Copyright Act of 1976, as its 107th Section, better known as the Fair Use Doctrine. In this section it expresses the limitations of copyright holders’ rights in regards to their work and lists four factors that are meant to be used “in determining whether the use made of a work in any particular case is a fair use.” These four factors are, in chronological order, “the purpose and character of the use,” “the nature of the copyrighted work,” how much of the copyrighted material is “used in relation to the copyrighted work as a whole,” and the “effect of the use” has on the “potential market for or value of the copyrighted work.” In addition to these four factors, it specifies in this section of the law that use of copyrighted material “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research” is not infringement (“Section 107”).
However, outside of the “preference for the critical, educational, and nonprofit over the commercial,” the fair use doctrine gives few hints as to the meaning of the first factor, and “no guidance for distinguishing between acceptable and excessive levels” according to Judge Pierre N. Leval, a United States Circuit Judge of the U.S. Court of Appeals for the Second Circuit with a history of dealing with intellectual property rights lawsuits. Judge Leval, in his essay, “Toward a Fair Use Standard,” attempts to clear up this issue by expounding upon the purpose of the Copyright law and the parameters of Fair Use. In this, he proposes a new type of fair use within the first factor, transformative use. In order for a work to exhibit transformativeness, its use of the copyrighted material “must be productive” and “employ the quoted matter in a different manner or for a different purpose from the original” (Leval). A possible definition of transformative use could be that the derivative work should show significant alteration from the original copyrighted work and be distinctly different so as to alter the purpose from that of the original piece. Such “transformative use,” as described by the Judge, recognizes that creative works are derivative of previous, inspiring works, and thus may help to further encourage the promotion of the arts and sciences. The United States Congress should amend the Copyright Act of 1976 Section 107 to include a clear definition of “transformativeness” in the Fair Use Doctrine. Adding a definition of transformativeness to the law, may benefit the United States governmentally, economically, and theologically.
The Copyright system relies on a delicate balance between protecting intellectual property rights and promoting the advancement of art and science in our society. If there is too much protection covering the works of artists, it will allow no growth to stem from those seeds of intellectual creativity. The opposite, having too little protection, can have the same effect, however, because without the reward provided through the protection of an artist’s work, creative thinkers would have little drive to bring their creative inventions to life. This teeter-totter affect of the copyright law makes it especially difficult to clearly define fair use, particularly in cases in which one intellectual creator transforms the work of another, causing a lack of “consensus on the meaning of fair use” (Leval).
The purpose of the Copyright law is to both protect intellectual property rights and promote the arts and sciences. However, it leans more on the side of protecting the intellectual property rights of intellectual property holders. In that purpose, according to Intellectual Property Rights Attorneys Charles Ainsworth and Jason Saunders, the Copyright law fulfills its purpose. In some ways, it goes “a little too far in achieving” that purpose (Saunders). Thus, by including a definition of transformativeness, which favors fair use of copyrighted material, the balance of the Copyright law may tip in order to be more equally fair to both parties in intellectual property court cases. Additionally, a definition of transformative use, being an extension of the “purpose and character” factor of the Fair Use Doctrine, may clear up the confusion surrounding the first factor, as well as “reduce the number of differing opinions of courts” (Ainsworth). By adding a definition of transformativeness to the Fair Use Doctrine, the balance of the Copyright law would be more stabilized and thus would become a fairer system in the court of law.
Courts dealing with intellectual property rights cases often vary in opinion from one to another, especially in situations where there is no standard protocol. Within the judicial system, dissimilar interpretations of law can be shown in appeals cases when the decision of a lower court is either partially agreed upon or completely reversed by a higher court. For example, the court case Salinger v. Random House, Inc. and Ian Hamilton involves an author, J.D. Salinger, and a biographer, Ian Hamilton, who in his biography of Salinger used a large number of the author’s unpublished letters. History states that before 1978, common law copyright protected unpublished letters and works, however the Copyright Act of 1976 overruled copyright common law and tucked such works and letters under the wing of federal copyright law. Through this, copyright owners were given the “right of first publication among the rights accorded to the copyright owner” (“Salinger v. Random House and Ian Hamilton”). Despite the fact that such unpublished works are protected under the 1976 Copyright Act, they do not escape the Fair Use Doctrine of the Act, which states that simply because “a work is unpublished shall not itself bar a finding of fair use” (Pallante). The New York District Court, in this case, ruled that Hamilton’s use of Salinger’s letters in his biography of the author was fair use. The case was then appealed to the Second Circuit Appeals Court of the United States, and it was found by the Second Circuit justices that Hamilton’s use was not fair use, reversing the ruling of the district court and directed the lower court to “issue” a ban of the “publication of the biography in its present form” (“Salinger v. Random House, Inc.”). Reversed decisions appear to have become quite commonplace in the Appeals Courts and the Supreme Court.
Statistically, in 2006, “40.9 percent of all 65,138 district court filings that were tried to judgment between 1987 and 1996 were appealed” and nearly a third of the original decisions in those cases were reversed (Schoenhard). In the Courts of Appeals “the average reversal rates across the circuits…ranged from 46.2 percent to 79.8 percent” between 2005 and 2010 (Newman and Summers). Additionally, between the years of 1999 and 2008, the Supreme Court reversed the decisions on 386 of its 660 cases, an overall reversal rate of 58% with varying reversal rates of 41.9% to 71.4% depending on which circuit court it was appealed from (Hofer). In the year 1984, the Texas Supreme Court reversed 61% of the Appeals Court decisions, and in 78 of its 103 dispositions had partial or complete reversal (“Supreme Court”). More recently, between the years 1999 and 2008, the “Federal Circuit had the highest reversal rate of any of the federal courts of appeals” at “83.3percent.” Additionally, the Federal Circuit had an even higher reversal rate of “about 92.3 percent” in intellectual property cases (Hofer and James).These numbers show that judges are not always in agreement with one another in court rulings.
The variances in the opinions of the courts are due to the Fair Use Doctrine’s lack of a clear standard that could be applied to all cases. Section 107 of the Copyright Act of 1976, the Fair Use Doctrine, was based off of the findings in Folsom v. Marsh and the commentary made by Justice Joseph Story in regards to that case (Bracha). According to the court in this case, “the question” of fair use is grounded on a “balance of the comparative use” of the materials used, “the nature…of the materials” that were used, “the objects of each work,” the extent “to which each writer” may have used the “same common sources of information,” or “exercised” the same thought process in choosing the media and composition (“Folsom v. Marsh”). These are simple enough guidelines for the judgment of fair use in cases of blatant plagiarism or cases in which the copyrighted material is being used for news reports, critiques, or educational purposes. Purposes such as these are nearly always black and white in whether they “promote the Progress of Science and useful Arts” or not (“Section 107”). However, these are not the only purposes that are covered by the Fair Use Doctrine; there are others such as transformative art, parody, invention, among an assortment of various creative avenues. “Each advance” in the progress of the arts and sciences builds upon works “fashioned by prior thinkers,” and so there is “no such thing as a wholly original thought or invention” (Leval). Due to the derivative nature of the arts and sciences, it is difficult “to lay down any general principles applicable to all cases,” it is for this reason why the court’s findings, and as a result the Fair Use Doctrine, were written in without a defined standard (Story). Since no clear standard has yet to be made, courts often vary in opinion in regards to cases involving the Fair Use Doctrine. The results of these varied opinions due to the lack of a clear standard by which to judge fair use are incorrect sentencing, extended time periods during which the court must come to a conclusion, and as a result of these consequences, increased legal costs.
These legal costs can vary in price and as more fees are added, the price can increase dramatically. In the District courts, these fees can individually cost anywhere between $6 and $176 per document filed, search conducted, and reproduction of evidence made in order to present testimonial information of the case to the court (“District Court”). Fees in the Appeals Courts can individually cost between $11 and $500 (“Court of Appeals”). These costs do not include what paid attorneys charge for their services, and while there are pro bono, or court appointed, attorneys, these lawyers usually do not have nearly as much experience as their paid counterparts nor are they normally as effective since these attorneys do not as much incentive to win case since their paychecks do not depend upon these cases. In addition to this, there are “few” true “experts” on intellectual property law, let alone Copyright law, in the United States, as intellectual property rights is a complicated subject (Ainsworth).
In some other countries, the line between fair and unfair use is more defined than in the United States, and as a result, these countries have reduced costs and damages from intellectual property rights litigation. The Spanish Intellectual Property Act states that the “author’s rights are to be limited only ‘in cases this law provides,’” these limitations were specified in the statute “narrowly” so they would only apply to certain “circumstances” (“Fair Use and Fair Dealing in Foreign Countries”). Similar to Spain, Begium has no guidelines for fair use, but rather states specific exceptions to copyright infringement (“Questionnaire on Copyright”). In contrast, the United States does have a law which provides four factors from which a work can be considered fair use and exempt from copyright infringement. Of these four factors, three of them can be found in the exemptions listed in the Belgian and Spanish Copyright laws. There are also other “additional exemptions” which are “narrowly crafted and apply only under specified circumstances, to narrow classes of works, and for specifically defined activities,” just like the Belgian and Spanish Copyright laws (“Fair Use and Fair Dealing in Foreign Countries”). The Spanish and Belgian Copyright laws have specific exemptions for fair use; the United States should adopt more specifically defined exemptions for the use of copyrighted material.
The purpose of The Statute of Anne, which put forth the first law regarding copyright, was to prevent the financial “ruin of authors and their families” which “too often” came about due to the “practice of pirated publication” (Leval). Statistically, in a study performed between 2000 and 2010, the United States showed that litigation involving patents, a type of copyright, had extremely high damages that were being debated within the case, as well as average costs of a lawsuit falling between 1 million and 10 million Euros, this would be between $1.2 million and $12 million during this indicated time period. During this same period of time, both Belgium and Spain experienced low damages while amounting to average costs that fell between 50 thousand and 100 thousand Euros, this would be between $60.6 thousand and $121.2 thousand (Graham and Zeebroeck).
This success in the reduction of the average cost and damage from intellectual property litigation in Belgium and Spain can be applied to the United States due to the similarity in the copyright laws between these countries. It is quite possible for the United States to modify its Copyright law to be more specific, and thus promote better understanding of the parameters of the Fair Use Doctrine. The specifically defined exemptions of Belgium and Spain have helped these countries greatly reduce the damages and costs of intellectual property litigation and similar, clear definitions of the limits of fair use should be implemented in the U.S. Copyright Law.
The confusion surrounding the Fair Use Doctrine also presents a moral issue. The Catholic Church is considered by many to be a leader in the promotion of human rights with numerous charities throughout the world dedicated to providing for those in need and advocating for nations to serve the needs of their people. “All people,” according to the United States Conference of Catholic Bishops, “have a right to life and to secure the basic necessities of life.” For this reason, the Church “locates intellectual property rights within the broader framework of common good,” as these rights are meant to ensure a necessary component of life, “economic security” (“A Catholic Framework for Economic Life”). However, the confusion of average citizens and judges in regards to the meaning of fair use in the Fair Use Doctrine can cause moral dilemmas and destabilize financial security.
Theft is forbidden by the seventh commandment in Catholicism, which states “You shall not steal” (“Life in Christ”). According to the Catechism of the Catholic Church “unjustly taking or keeping the goods” of another and “wronging him in any way with respect to his goods” is a sin. Copyright infringement constitutes the idea that the intellectual property of one person has been stolen by someone else. This, along with the confusion surrounding Fair Use in that it “provides no guidance for distinguishing between acceptable and excessive levels,” creates an environment in which a person cannot properly differentiate whether or not his or her actions are moral (Leval). Thus, since a person may not be able to properly differentiate what theft is in regards to the copyright law, he or she may inadvertently wrong another individual without knowledge to the wrongdoing.
Beyond the consequence of inadvertently stealing the work of another, there is also the dilemma of high court costs in intellectual property cases. The issue of fair use and copyright, when considering the purpose of the Copyright law, boils down to the financial gains or losses in the intellectual property market. The original copyright law, the Statute of Anne, was created in order to prevent the financial “ruin of” authors “and their families” by securing the rights to “copies of printed books in the authors or purchasers of such copies” (“The Statute of Anne”). The United States’ Copyright law is similar in its system, ensuring “Authors and Inventors” certain rights to their “Writings and Discoveries” (Pallante). Even the Fair Use Doctrine deals with money in its fourth factor, “the effect of the use upon the potential market for or value of the copyrighted work” (“Section 107”).
When allegations of copyright infringement are made and brought to court, these accusations can bring about massive court costs. These court costs are far too high for people to afford with average costs of intellectual property litigation between 1.2 and 12 million dollars (Graham and Zeebroeck). Such costs would cause extreme hardship for individuals and their families. Government institutions and the “economy exist for” the people, not the other way around. Such large costs would unfairly penalize the accused and their families, and would prevent these people from fulfilling the call to “provide the needs of their families.” In addition, these costs would discourage people from participating in intellectual creativity that would promote innovation through arts and sciences, and, as a result, hinder creative individuals from meeting their “obligation to contribute to the broader society” (“A Catholic Framework for Economic Life”). Thus, the Fair Use Doctrine should be amended to be clearer in its meaning of what constitutes as fair use through the addition of a definition of transformative use which would define a line between fair and unfair use of copyrighted material.
On the other hand, in some court cases, the justification for transformative use can undermine the other factors meant to safeguard the rights of Copyright holders, which must be overcome in order to claim fair use. This can have a negative effect on the incentive to create by tipping the balance of the Copyright system in a direction in which the rewards for creativity and innovation. One such lawsuit, as mentioned earlier, is the Salinger v. Random House, Inc. and Ian Hamilton court case. This dispute over copyright infringement, involved an author, a biographer, and, as the judge of the case, Judge Pierre N. Leval.
The biography of J.D. Salinger by Ian Hamilton contained the contents of a number of unpublished letters by Salinger. These letters are protected under the Copyright law, so in order to avoid obvious infringement, Hamilton paraphrased Salinger’s letters. However, his paraphrases of the letters were extremely close in similarity, replacing only a few words within those passages with words of close relation to one another, and taking the most interesting information from the letters for the biography (“Salinger v. Random House and Ian Hamilton”). Leval, in his analysis of the case, viewed that the amount of which Hamilton copied the unpublished letters was “minimal” and added up to fewer than “30 instances,” claiming that the use was fair and transformative (“Salinger v. Random House, Inc.”). However, these “30 instances” likely only dealt with the direct quotes Hamilton used from Salinger’s letters, not the paraphrases (“Salinger v. Random House and Ian Hamilton”). In his decision, Leval ignored the second factor of the Fair Use Doctrine, “the nature of the copyright work,” by denying Salinger his right to first publication of his unpublished letters. Also, in not observing the similarities between the biography’s passages about the letters and the letters themselves, the judge did not properly assess the quantity of the amount of copyrighted material “used in relation to the copyrighted work as a whole.” Lastly, Leval does not take into account the “effect” the biography’s use of copyrighted material from the letters would have on the “potential market for or value of the copyrighted work,” had Salinger decided to publish these letters (“Salinger v. Random House, Inc.”). By ignoring these essential factors, Leval disrupted the balance of the Copyright law, whose main purpose is to protect the intellectual property of copyright holders from being unfairly used by others.
Following Leval’s decision on the case, as the New York District judge at the time, the case was appealed to the U.S. Court of Appeals for the Second Circuit where it was “reversed and remanded.” Orders were also given to prohibit “publication of the biography in its present form” (“Salinger v. Random House, Inc.”). While ordinary, everyday “paraphrasing is not copyright infringement” according to Attorney Jason Saunders, the close paraphrasing displayed in Hamilton’s biography of Salinger can constitute infringement upon intellectual property rights. Leval even admits to making “some error in Salinger’s case” in his essay. However, in the essay, he “never answers the question,” he simply “poses the issue” surrounding the Fair Use Doctrine, offering “no resolution” as to how to fix the issue, and actually further confuses the meaning of the Fair Use Doctrine (Ainsworth).
The disagreement between rulings in intellectual property rights cases mentioned in Leval’s essay is a natural occurrence in the judicial system. The Fair Use Doctrine is open to interpretation, and thus judges will have differing opinions in regards to the cases involving it, after all, “judges are human” and humans disagree all the time (Ainsworth). According to Attorneys Jason Saunders and Charles Ainsworth, the majority of intellectual property cases are settled outside of court. About 80% or more in intellectual property cases, according to Ainsworth, and more specifically about “95% of patent” disputes are “settled before trial” according to Saunders.
Most Appeals Courts are presented with only the “closest calls” in intellectual property rights litigation, and so could really go either way in their decision as to what is fair use in these trials (Saunders). Since these lawsuits are usually extremely debatable, the Appeals Courts, where appealed court cases go to be debated after the initial debate, will naturally have higher reversal rates. In addition, the Federal Circuit Court only saw 13 intellectual property cases between 1999 and 2008, which is nearly a 10 year period of time. Only 1 of those 13 was not reversed in any way from the previous decisions of other courts (Hofer). However, since lawsuits usually go through more than one court before arriving at the Federal Circuit, the decisions on these court cases are more likely to reverse at least once between those courts than fully agree with each other.
The reason why there is no clear standard in Fair Use is because we do not have a perfect standard, and if we do not have a perfect standard that can be set up, we shouldn’t have one (). It is “better” to not have a “standard to tell how much is too much.” There may not be “much guidance as to how much is too much, but there should probably not be.” There are so many different factors to consider in each case, and the “facts are different in different cases,” so no “meaningful standard” could even fathom to “say what to consider” (Saunders.) A definition of transformativeness may “not” even “make a difference” when it comes to the interpretation of the law by the courts, according to Saunders, and there is no real point to amending a law when the amendment will do nothing to better the interpretation or implication of the law.
Additionally, while the Copyright systems may appear to be better than the United States in Spain and Belgium, the statistics that Graham and Zeebroeck present are unfairly skewed against the United States in a number of areas. First of all, Spain and Belgium are far smaller countries than the United States and have smaller populations, and thus have fewer people to file intellectual property rights lawsuits. Additionally, the United States uses “private intellectual property rughts and market-based competition” to “promote economic growth through innovation”, so people in the United States are more likely to file for intellectual property rights protection and lawsuits when those rights are violated (Pate). The average costs of intellectual property lawsuits in Belgium and Spain also do not account for punitive damages, while the costs in the United States do account for these damages (Graham and Zeebroeck). These punitive damage costs in the United States for those determined to be violators of intellectual property rights by the court, are put in place to discourage copyright infringement and protect copyright holders against monetary loss that could lead to bankruptcy. Such punitive costs are placed in a number of other types of cases involving other law violations, these costs help to reduce the incentive to break the law (Gottlieb). Such punitive costs in court are often avoided, however, because most intellectual property cases are settled outside of court (Ainsworth). Spain and Belgium courts settle, on average, intellectual property rights cases more quickly than the United States (Graham and Zeebroeck). This is likely due to their specific exemptions which do not leave much room for debate. However, they also do not offer much room for creativity to flourish, and so leave little chance for economic improvement through invention or artistry as the United States does. Due to this, these other countries do not have a better set up for their Copyright law than the United States (Ainsworth). Thus, this shows that specific exemptions alone may not aid in promoting creativity.
The punitive costs of intellectual property rights cases, combined with court costs appear to be extremely expensive, and they are for most people. However, most intellectual property cases are settled outside of court for the very purpose of reducing cost, so if there is a concern about the cost, the issue can be settled out of court for a lower expense (Saunders). Though the compensation for damages from infringement aids in the prevention of the financial ruin of holders, it usually does not ruin those who have to pay compensation either. Punitive damage costs for infringement are only taken from profits in regards to the infringement, usually only a portion of those profits. This is shown in the Pharrell Williams and Robin Thicke v. Mavin Gaye family case, in which Williams and Thicke together paid “Gaye’s family $7.4 million in compensation,” however, the song “Blurred Lines” which was disputed over in court, earned the singers and song writers about “$5 million” each, and “raked in $16 million in profits” (Yahr). Thus the performers were not bankrupted by the lawsuit, but did pay for the copyright infringement upon Marvin Gaye’s song.
On a more theological standpoint, a person can sin without knowledge to the fact that he or she is sinning. So the confusion surrounding the Fair Use Doctrine does present an issue. However, according to the Church, “we are supposed to remain forever” in the education of “His word and under counsel of the Spirit” in order to, hopefully, “better understand God’s expectations and thereby cease sinning.” It is “by our faith in Christ” that “all our sins are forgiven,” these sins include “those we know” and the sins that “we” do not “know” (“Can Someone Sin and Not Know It?”).
So, while the issue surrounding fair use presents a theological issue, this can be solved by individuals through their faith and works. Also, the elusive definition of fair use given in Section 107 of the Copyright Act of 1976 by the four factors creates incohesive opinions amongst judges as to what is and is not fair use, however, in Leval’s essay “transformativeness” was simply an explication of his interpretation of the meaning of the first factor of the fair use doctrine (Leval). Thus, by adding a definition of it, the revision to the law may add more weight to the first factor. As a result the addition may mistakenly express the idea that the first factor is more important than the other three factors, and would thus tip the balance between copyright and fair use. The definition of “transformativeness” presented is only an extension of the first factor, and through its widely applicable definition, may cause further dissention between judges. However, it is even more likely to do nothing at all, according to Saunders, so there would be no point to amending the law when no positive change would come about.
While specific exemptions appeared to lessen the cost of intellectual property litigation, the statistics did not present a full picture of comparison between the United States and the European countries of Belgium and Spain. The United States is also different from these two countries in its priorities. While Spain and Belgium as well as other European countries spend several years thinking through the making of a product before actually creating it, the United States prioritizes fast production and fast solutions, getting products on the market while the same types of products are still in the developmental stage in the European countries (Ainsworth). If the United States were to use more specific limitations in regards to fair use, the limitations might strangle creativity. Also, there is no way to standardize the interpretation. If it were to attempt such an endeavor, the country’s legislatures would be forced to create hundreds of specific exemptions in order to maintain the same amount of output.
In the courts, while judges may have differing opinions as to the true meaning of fair use, there will always be dissenting opinions between judges. Even on the most seemingly straightforward cases in court have differing opinions as to what is right, what is wrong, and the amount of punishment that is due to violators of the law. The proper course of action in the issue of fair use is to leave the Fair Use Doctrine as it is and allow the courts to decide in each case whether or not the use is fair.