Current fair use law is hazy by design; instead of laying out specific use cases, the law relies on the famous "four factors" about the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work. This can be maddening in many situations, because it is impossible to know in advance if a particular use qualifies. On the other hand, it gives a fair use incredible flexibility to adapt to new circumstances like the advent of the VCR.

But in the paragraph that comes just before the four factors, Congress did see fit to lay down a nonexclusive list of fair uses: "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Is it time for more list items? The new Copyright Reform Act, proposed by Public Knowledge, would make a deceptively simple change to bring fair use into the 21st century—add seven words to this list.

Seven dirty words?



The CRA is a new project from Public Knowledge, with much of the heavy lifting being done by the Cyberlaw Clinic at Stanford and the Technology & Public Policy Clinic at UC-Berkeley. While Berkeley's noted copyright scholar Pam Samuelson works up a new "model statute" for copyright law in the digital age, Public Knowledge hopes to make smaller interim fixes to copyright law that won't require the same dramatic reworking.

This week, it released the first of these reform ideas (PDF) focusing on the principle of fair use. In addition to "criticism" and "news reporting" and the rest of the items in the fair use preamble, the CRA proposes the addition of three more: "incidental uses, non-consumptive uses, and personal, non-commercial uses." They might sound minor, but these suggestions are bound to provoke controversy.

Incidental uses "involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use—for example, capturing music playing over radio when filming a family moment." Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.

The second category, non-consumptive uses, "do not directly trade on the underlying creative and expressive purpose of the work being used." In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.

"Because they do not trade on the expressive or aesthetic aspects of copyrighted works," says the report, "they pose little threat to the core market interests of copyright holders that copyright endeavors to protect."

Copyright owners do worry even about such innocuous-sounding issues, however, because of things like the Google Book Search settlement, where the issue of non-consumptive use has already arisen. Researchers would love access to such a massive archive of textual material, but rightsholders worry about what might happen if Google's data sets are released too widely. Would the text of millions of copyrighted books, released to researchers in their entirety, open the way for widespread piracy of the last century's copyrighted works in one giant download?

But it is the third proposal that might prove most controversial. "Personal and noncommercial uses" are said to "have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed."

But at what point is a use truly "noncommercial"? This issue has been raised in both of the ongoing infringement cases against Jammie Thomas-Rasset and Joel Tenenbaum, the first two people to take RIAA-backed P2P infringement cases to trial. In both cases, the labels have insisted (repeatedly) that no easy distinctions can be drawn between commercial and non-commercial activity; though sharing copyrighted files with others may be "non-commercial" in the sense that no one is charging money for access, it also seems to be quite clearly "commercial" in the sense that a major purpose is to avoid paying for music that could easily be obtained from stores like iTunes.

Even the backers of the Copyright Perform Act, sympathetic as they are to fair use and an expansive reading of consumer rights under copyright law, do draw the line here. While they want to ensure that deference is given to things like time-shifting, the report notes that simply placing "personal and non-commercial" in the preamble to fair use law isn't the end of the story. The four factors still apply, and any non-commercial personal use that "sufficiently harms the copyright holder's market would not be fair."

Instead, personal and noncommercial copying would gain the presumption of legality—but if copyright holders could show "either actual market harm or a likelihood of market harm," those uses would not be allowed. As Pam Samuelson notes, "ordinary personal uses, such as backup copying and platform-shifting, would be fair, but P2P file sharing would not be."