The age of digital technology has introduced new complications into the issues of fair and private use of copyrighted material.   In fact, the question of private use of another’s work has been transformed from a side issue in intellectual property jurisprudence into the very center of intellectual property discussions about rights and privileges in a networked world. This paper will explore the nuanced difference between fair and private use as articulated in the US and the European Copyright Laws.   Part One will explain the legal use and meaning of fair use and its justifications.   We maintain that it is almost impossible to resolve the issue of the fair/private use’s legal nature, if one has not previously resolved copyright’s legal nature. Legal resolution of such conflicts, as we shall demonstrate, follows different rules, and the messages sent to users and authors vary greatly depending on the jurisdiction.   Part Two will examine the issue of Fair Use by Design.   We will look at the impact of Digital Rights Management and explore the following questions:   Does digitization create works, which must be differently (copyright) protected from printed media, and does the nature of fair use change because we are dealing with digital content? We will show that protecting digital works by code, via various digital rights management schemes is shrinking the public domain of information and can restrict fair use.  

1.   FAIR USE:   COMPARATIVE LEGAL PERSPECTIVE

Fair use is, generally, the US term for what English law calls fair dealing (with another’s protected work). Private use in US law is a sub-set of fair use. European law does not employ a general term such as fair use, but enlists a series of copyright limitations, one of which is private use (of another’s work without permission). In the States, the 1976 Copyright Act does not refer to an exception favoring private use. One can only allege the defense of private use as a subset of the general exception of fair use-in this case; private use is factored into the fair use analysis. Fair use was a judicial limitation to copyright, which in 1976, was added to the Copyright statute. The DMCA, which was enacted in 1998, enlists a series of exceptions to copyright and again, does not provide for a private use exception as such; it stipulates, though, in par. 1201 (c) (1) that fair use is not affected by its provisions, so it could be reasonable to assume that private use, as a subset of fair use, remains unaffected. The European Copyright Directive 2001/29/EC (EUCD, European law) refers explicitly to private use: Art. 5(2) b may seem to protect private use, leaving its regulation at the discretion of the contracting states, as in the past. However, there are some major differences: a.) the limitation adds that the private use must not be related to commercial ends b.) the limitation refers only to reproduction and not to communication and c.) fair compensation is stipulated for this private use. That Art. 6 of the Directive, (the member states may introduce a limitation of copyright for reproductions in any medium by a natural person for private use for non-commercial ends) must also be observed, means that when a digital work is protected with technological measures, then the application of the exception can become problematic. Most European nations have taken advantage of the Directive’s mandate and have implemented an exception for private use.     What is the legal nature of the exception/limitation of private use? There certainly is a discrepancy in legal terminology used in the texts on copyright and its exceptions. What a user is allowed to do with another’s work without authorization has been called a limitation, exception, exemption, justification, defense, sui generis defense, privilege, interest-even a right as strong and equal to its sister, copyright.   We will examine the implications of these terms.

• Justifications of Private/Fair Use

Perhaps, it is impossible to resolve the question of copyright v. fair/private use balance without returning to the main questions: why copyright? Copyright has been seen as an essential tool supporting the idea that works will be produced, because authors need the incentives to produce them; another view is that copyright is a natural right of the author. From a strictly utilitarian position, copyright is an economic property right and fair/private use was necessary in the past, only because the transaction costs of asking permission to use parts of the work were prohibitive. Scholarly and academic communities depend on fair use.  

How can fair use be justified with digital content?   Free access to content like reading a book is not the same as free use of content.   If I read an e-book on line, I make a copy every time I access it.   So the question arises, do I consider this free access to content or do I need a justification for fair use?   The issue of fair use of proprietary digital content captured the world’s attention with development of peer to peer networks that gave users the ability to download digital content at will (see Grodzinsky and Tavani, 2006), and caused the legal and software communities to focus on other distribution models such as iTunes.

Digital content also refers to software.   Richard Stallman of the Free Software Foundation (FSF) says “ Most free software licenses are based on copyright law, and for good reason: Copyright law is much more uniform among countries than contract law, which is the other possible choice. There's another reason not to use contract law: It would require every distributor to get a user's formal assent to the contract before providing a copy” (Stallman, 2006).   Stallman has asserted that the purpose of copyright and its legitimacy are tied to the public good.    Stallman sees the social value of an individual modifying and sharing a program as more important than the author’s intellectual property rights, and, therefore advocates that software should be free.   Larry Lessig has expanded the ease of fair use on the Web with his Creative Commons License. In the next section we will examine the impact of Digital Rights Management on fair use.

• FAIR USE BY DESIGN

 Digital Rights Management (DRM) technology has implications for fair use.   Because the DMCA, stipulates that when a work is digital and protected by anti-circumvention technology, it is illegal to circumvent it for any reason,   DRM has become an obstacle to fair use.   Proposals about how to make DRM more “fair use friendly” can be found in the works of Burk and Cohen (2001) and Mulligen and Burstein (2002). A fundamental ethical issue is what commitment should designers of technology make to preserve this exception to copyright law?   It will be quite difficult, given the wording of the    DMCA, to preserve fair use if designers of technology deliberately choose to build a digital fence around it. There are also global problems associated with what exactly is meant by anti-circumvention in countries other than the United States.    DRM also raises questions of privacy and fair use. DRM technology might compromise a user’s   access rights and ISP’s could be required to hand over personal information if a violation is suspected.   Fred von Lohmann, senior Intellectual Property attorney for the FSF expresses concern that DRM technologies that may be used by copyright owners to erode fair use exceptions now have the force of law because of the DMCA.   We maintain that as code is used to support private interpretation of the law, the legal process is diminished and loses its system of checks and balances.   This section will give evidence of several cases to support this hypothesis.

BIBLIOGRAPHY

Burk, D.L , Cohen,   J.E , (2001). Fair Use Infrastructure For Copyright Management Systems, Harvard Journal of Law & Technology, vol. 15, no. 1, Fall 2001. http://jolt.law.harvard.edu/articles/pdf/15HarvJLTech041.pdf   accessed October 21, 2006.

Grodzinsky, F and Tavani, H. (2006) P2P Networks and the Verizon v. RIAA

Case: Implications for Personal Privacy and Intellectual Property Ethics and Information Technology : Springer Netherlands ISSN: 1388-1957 (Paper) 1572-8439 (Online), DOI: 10.1007/s10676-006-0012-4, Issue:  Volume 7, Number 4, Pages: 243 - 250 Title:  Surveillance and Privacy,   Published   May 2006.   Refereed.

Joyce C., Patry W., Leaffer M. & Jaszi P, (2000) Copyright Law (4 th ed.)   New York: LEXIS Publishing

Mulligan, D.K,   Burstein, A,( 2002),   Implementing Copyright Limitations in Rights Expression Languages, in 2002 ACM Workshop on Digital Rights Management, Washington DC, November 18 2002   http://crypto.stanford.edu/DRM2002/mulligan_burstein_acm_drm_2002.doc   accessed October 21, 2006.

Stallman, Richard (2006) Don’t Let ‘ Intellectual Property’ Twist your ethos. http://www.gnu.org/philosophy/no-ip-ethos.html accessed October 23, 2006.

von Lohmann, F. (2002)  Fair Use and Digital Rights Management: Preliminary thoughts on the (Irreconcilable?) Tension between them. http://www.efforg/IP/DRM/fair_use_and_DRM.html accessed October 26, 2006.

von Lohmann, F. (2006)  Unintended Consequences: seven years under the DMCA, v. 4. http://www.eff.org/IP/DMCA/DMCA_Unintented_v4.pdf accessed October 25, 2006.

See Joyce C., Patry W., Leaffer M. & Jaszi P., Copyright Law, fourth edition, 1998, p. 715, who in the same page refer to fair use as a privilege, an affirmative defense and a limitation. ‘..(Fair use is..) an equitable rule of reason…no real definition of the concept has ever emerged..’, id. p. 716.

Copyright has also been described not only as a constitutional (this is clear in the US) right, but also as a monopoly limited in time, a property right, a right having a moral dimension (apart from the property one, in Europe), a privilege etc.