Copyright Talk

An editorial by Patrick Ross, the executive director of the Copyright Alliance criticizes the complaint recently filed with the FCC (see post here ) that alleges the standard copyright warning placed on movies and broadcasts is misleading because it does include information on fair use. In the editorial, Ross likens the claim of the complainants to an argument that fair use is a consumer right, as opposed to a defense. What does that mean, exactly? His point is that fair use is not a clearly defined concept, a specific right or set of rights that the public has been given. Rather, fair use is a set of guidelines that depend on the particular circumstances of the situation, a right asserted only after a copyright owner has alleged infringement. Read the full editorial.

Here’s an excellent example of that right versus defense concept at work: This past weekend Boston College opened an exhibition of newly discovered paintings that may or not be the authentic work of Jackson Pollock. The College wanted to put pictures of clearly authentic Pollock paintings side by side with the exhibited works in it’s catalogue for the exhibition. The College sought and was denied permission to publish those images. However, when the catalogue was released this weekend, it did in fact contain some of the images for which they permission to publish had been denied.

So why would the College publish these images after being told not to by the copyright holder? The reason is that the College, after consulting with their attorneys and other copyright specialists, believes that it’s use of the images is protected by the fair use doctrine. The Pollock people clearly do not believe this, and are likely to file legal action for infringement. Boston College will then be able to defend it’s action by saying that it believes fair use protects it from liability for infringement. Read more on this here.

The important thing to notice here is that Boston College’s assertion of fair use does NOT keep it from having to go to court. It does give Boston College a good defense to the claim of infringement. The actual outcome, though, is uncertain until a judge rules.

Consumer rights are much more clear than this mess.