Fair Use Is Not Free Use
Flying under the banner of First Amendment protection and claiming economic necessity, critics of current copyright protections are attempting:
- to expand Fair Use into Free Use.
- to restrict the rights of creative professionals .
This past week the Electronic Frontier Foundation (EFF) and the Computer and Communications Industry Association (CCIA) both released alarming information intended to cloud the facts about copyright protection.
Professional Photographers of America (PPA) and its allied associations in the Alliance of Visual Artists (AVA), together representing 22,000 hard-working professional photographers, think it is important to cut through those clouds and call theft, theft and stealing, stealing.
Professional photographers are possibly the largest group of copyright owners and, with an average income of $35,000 to $45,000 per year, they are particularly vulnerable to the illegal copying of their creations. A client illegally using a photo in advertising or reproducing their family wall portrait elsewhere can have a devastating impact on a photographer’s bottom line. It could even impact their mortgage payment for that month!
Any suggestion that reproducing copyright-protected works is “legal and okay” can erode a photographer’s already thin margin.
PPA supports Fair Use as defined in the Copyright Act. That act carefully describes legitimate uses of copyrighted material for education, commentary, review and other limited purposes. PPA adamantly opposes the efforts to expand the definition of Fair Use to “anything that can be done should be legal.”
In an article posted on Wired, Jennifer Granick, Civil Liberties Director at EFF, commented on Golan v. Gonzales, a case in the 10th Federal Circuit regarding a challenge to provisions in the Uruguay Round Agreements Act (The URAA was passed in 1994 and made some changes to the US Copyright Law regarding foreign-made works). What’s worrisome about this? Granick’s article suggests that the First Amendment’s free speech provisions trump copyright laws and notes that when it is “prohibitively expensive to find” a copyright owner, you should be able to go ahead and use or copy that creative work!
A report released last Thursday by CCIA indicated that “companies benefiting from limitations on copyright-holders’ exclusive rights—such as ‘fair use’—generate substantial revenue, employ millions of workers, and represented one-sixth of total U.S. GDP in 2006.”
Careful reading of the report methodology reveals that businesses that depend on fair use include the entire radio and television industries, computer manufacturers, audio and video equipment manufacturers, insurance carriers, and more. That’s a rather large group of companies…and it is certainly questionable if the insurance industry (for example) is entirely dependent on fair use of copyright-protected material.
On the other hand, these facts are clear: Copyright industries represent 11.12% of the U.S. economy ($1.38 trillion dollars as of 2005). They are growing at 7% a year and employ over 11 million Americans.
People should remember that reproducing copyright-protected material—such as a professional photograph—is illegal when done without the copyright owner’s permission and/or not under the Fair Use circumstances in the Copyright Law. We should call it like it is: theft is theft, stealing is stealing, and wrong is wrong.
In response, photographers and PPA are working to make the connection between copyright owners and clients easier. After all, photographers overwhelmingly want to please their clients. If a customer needs a copy of a photo, they are eager to meet their needs. In addition, PPA is working with other photographic associations to make it easier to find a copyright owner/photographer.
Basically, what the EFF and CCIA are suggesting eliminates the copyright protection that is good for the U.S. and necessary for the survival of small business photographers. Instead, people should consider ways to connect the copyright owners with the consumers.
