UPDATED /16, 3:22 PM

If the issue behind our debate this week about copyright and piracy in the digital age is how much control creators should have over what happens to their works, one of the crucial extensions to that question is the matter of fair use. Remixing is a key part of today’s culture, as people use commercial music and video as the raw materials for their own creations. Not surprisingly, Rick Cotton, the general counsel of NBC, and Tim Wu, the professor at Columbia Law school see these issues rather differently. You can read the entire debate here. Be sure to read the many thoughtful comments submitted by Bits readers. Then add your own views too.

Wednesday’s Question

What is fair use in the digital age? How much can I remix, quote, make fun of, or summarize without infringing on a copyright?

Rick Cotton: Before responding to this question, I want to make a preliminary observation. The debate about content protection in the digital world — and most particularly about content protection on the broadband Internet — is really and truly NOT a debate about fair use. The millions upon millions of pirated, infringing copies of entire movies, TV shows, games and software that are epidemic in today’s digital world have no claim whatsoever to being fair use. And efforts to reduce that traffic on video-sharing sites, on ISP networks, and on devices can be engineered to accommodate fair use. Hopefully, therefore, we can all agree, for example, that the vast P2P traffic involving the transmission of entire movies that is indexed on pirate Web sites and exchanged endlessly through broadband connections is most assuredly not fair use and deserves no protection. And similarly posting whole movies or whole episodes of TV shows or extended unedited excerpts on video websites deserves no protection.

Turning then to the question of fair use as posed in today’s question, I offer the following observations:

Fair use in the digital age is the same as fair use in the non-digital age. The fact that digital tools make it easier to use other people’s work doesn’t affect the analysis of whether that use is fair. Generally speaking, if you are making fun of, criticizing or commenting on a work (and not just reproducing or copying it), courts have found that you can use the work only to the degree necessary to make your point about that work.

It is also helpful to note what is not included. The fact that now individuals with relative ease can layer three or four songs, copy their favorite scenes from their favorite television shows, or take three or four movies and splice together their favorite action scenes and post them online does NOT mean that these uses are fair. Although some commentators have argued that the “non-commercial” nature of this type of use makes these uses fair, that is not the test under the Copyright Act. There needs to be something more — something that truly injects some degree of original contribution from the maker other than just the assembly of unchanged copies of different copyrighted works.

Lawyer’s footnote: Since fair use is a legal standard with a long history of interpretation, it is difficult to try to capture it in a brief answer. But, as a technical legal matter, fair use is not a “right,” a misconception and misstatement frequently made these days. Rather it is an exception to the copyright owners’ exclusive rights to determine how their expression is used in new works. Fair use permits use of portions of a work under limited circumstances, many but not all of which are set out in the Copyright Act. Because fairness cannot be reduced to a set of bright line rules, whether a use is fair is determined on a case by case basis and a large body of law has developed over decades to address this issue. The Copyright Act sets out a four factor test (although other factors can be considered). The factors include the purpose and character of the use, the nature of the original work, the amount taken from the existing work and the importance of what is taken and the effect of the use on the potential market for or value of the copyrighted work. Thus, as a legal matter, a case-by-case analysis remains the standard.

Tim Wu: Fair Use doctrine is creaking and groaning in the digital age, and it threatens to be surpassed by industry practice. There was once a well-understood line between what original and “secondary” authors were allowed to do. In the literary world this was the line between the original book on the one hand, and a book review or literary criticism on the other. But today things are much more confusing. Books begat films, character merchandising, giant fan guides, remix videos, fan art and other forms of secondary authorship that simply didn’t exist 100 years ago. These forms of authorship are in a gray zone; likely to fail the “four factor test” of fair use, but nonetheless largely tolerated by firms like NBC as a form of marketing. It is a sign of how ridiculous things are today that a copyright lawyer cannot give you a straight answer as to how much of Wikipedia is actually legal.

That’s why it is time to recognize a simpler principle for fair use: work that adds to the value of the original, as opposed to substituting for the original, is fair use. In my view that’s a principle already behind the traditional lines: no one (well, nearly no one) would watch Mel Brooks’ “Spaceballs” as a substitute for “Star Wars”; a book review is no substitute for reading “The Naked and the Dead.” They are complements to the original work, not substitutes, and that makes all the difference.

This simple concept would bring much clarity to the problems of secondary authorship on the web. Fan guides like the Harry Potter Lexicon or Lostpedia are not substitutes for reading the book or watching the show, and that should be the end of the legal questions surrounding them. The same goes for reasonable tribute videos like this great Guyz Nite tribute to “Die Hard.” On the other hand, its obviously not fair use to scan a book and put it online, or distribute copyrighted films using BitTorent.

We must never forget that copyright is about authorship; and secondary authors, while never as famous as the original authors, deserve some respect. Fixing fair use is one way to give them that.

Tim Wu 1/16, 3:22 PM: Rick describes fair use as not a “right” but an “exception,” and argues that every fair use issue must be decided a case-by-case analysis.

It is true that the Supreme Court has so suggested; but arguably they were referring to categories of works. For it is absurd to have a system where fair use cannot be categorically relied upon, ever, but that secondary authors will always be at some risk of infringing.

Take a publication like The New York Review of Books. Every review relies on an underlying work, and usually quotes at least a few lines. It strikes me as ridiculous to say that the reviews must be examined on a case-by-case basis, and may sometimes infringe, sometimes not. Rather, we should say that these reviews are categorically fair use, by right of the secondary author. It is absurd to have a publication like The New York Review of Books lying under the equivalent of Copyright’s sword of Damocles, wondering whether is breaking the law.

Now publications like The New York Review are established, and therefore unlikely to run into lawsuits. But newer types of publications, like fan guides, have no such cushion. That’s why I believe courts should do more to create bright lines as to what is fair use and what isn’t.

There is another way. As I’ve suggested in other writing, many of the ugliest Fair Use questions can and should be avoided by careful interpretation of the adaptation right. That is to say, I think we shouldn’t say that a book review would be infringing, but for fair use. Instead, we should say that the original author simply doesn’t “own” the book review in the first place. All the works that are true complements, in my view, should not fall under the “adaptation” right; but rather be something secondary authors are free to create. This may sound like legal mumbo-jumbo, but to simplify: We need to ask carefully what the breadth of the original author’s ownership is, and it shouldn’t include secondary works that add to the value of the original, like book reviews, fan guides, and so on.

THE DEBATE CONTINUES

Mr. Wu and Mr. Cotton will respond to each other and to comments by readers in this post throughout the day. So check back here to follow the discussion. And please add your questions and comments below. If you have a question you would like asked in the debate later this week, propose it in the comments to this post.

THE DEBATE SO FAR

Monday: Is Copy Protection Needed or Futile?

Tuesday: Should Internet Providers Block Copyrighted Works?

Wednesday: Mixing It Up Over Remixes and Fair Use