Whispers will not kill fair use

Fair use reproduction of copyrighted works can't be eliminated as a matter of fact, let alone in law.

lobby poster from “A Man to Remember,”  1938 RKO feature
Boingboing reports, via Google lawyer William Patry, that some large entertainment companies have launched a "whisper campaign" aimed at killing fair use.

Governments are being told, in effect, that the U.S. Copyright law is incompatible with the Berne Convention, an international treaty on which copyright laws worldwide are based.

Specifically it's being whispered that Section 107 of the U.S. Copyright Act violates the "three-step test" under which coyrighted works can be copied.

Patry calls this an attempt at swiftboating fair use. Convince enough governments that fair use is incompatible with Berne, and you can force it out of U.S. law.

This is, of course, nonsense. Fair use reproduction of copyrighted works can't be eliminated as a matter of fact, let alone in law.

Why not? You're soaking in it. Right now this piece of copyrighted work lives in thousands of places, on server caches, and on the hard drives of readers.

This constant digital copying is, in fact, the best protection copyright works have of living to the end of their copyright terms, especially under U.S. law.

Want proof? Consider A Man to Remember, a 70-year old RKO film which features a Dalton Trumbo screenplay and was the directorial debut of Garson Kanin.

It starred Edward Ellis (1873-1952), one of those character actors you will see late at night, say "who is that," then spend the rest of the night arguing about it. He might otherwise be lost to history.

But for this.

As the Hollywood Reporter describes it (and this copy of the story is actually on a server at Stanford University) once restorers figured out the copyright issues, the only restorable copy turned out to be in the Netherlands, with Dutch subtitles.

Many copyrighted films have been lost, in whole or in part, because the only copies, on nitrate film, could not be restored in time.

But this story, as poor as you may consider it, will live forever, thanks to the constant copying required by the Internet, and the fair use which protects that copying.


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