Posner on Copyright: Restrictive Fair Use a Risk To Creativity

Judge Richard Posner, one of the best regarded judges in the world, has a blog post in which he expresses concern about the potential for patent and copyright law to restrict competition and creativity. On patents, Posner notes:

When patent protection provides an inventor with more insulation from competition than he needed to have an adequate incentive to make the invention, the result is to increase market prices above efficient levels, causing distortions in the allocation of resources

He continues by citing the software industry as an example of the dangers of excessive patent protection. On copyright, he expresses doubt about the social benefit of copyright for any academic work other than textbooks, noting that they are a by-product of academic research that would be produced with or without copyright protection. His two major concerns involve the term of copyright (which is longer in the U.S. than in Canada but could be extended under the TPP) and narrow interpretations of fair use:

The next most serious problem is the courts’ narrow interpretation of “fair use.” The fair use defense to copyright infringement permits the copying of short excerpts from a copyrighted work without a license, since the transaction costs of negotiating a license for a short excerpt would tend to exceed the value of the license. The problem is that the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license. Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very  damaging effects on creativity. This is not widely recognized.

Canada actually fares well on both of these issues – for now. Canadian copyright term is shorter than the U.S. and the Supreme Court of Canada has emphasized the need for a broad interpretation of fair dealing. The danger lies in the continuing pressures to extend our term and to narrowly interpret the Court.


  1. Shawn H Corey says:

    Just Say No
    Intellectual property is an oxymoron. Ideas belong to the commons. Patent law says so. Copyright law says so. Patent and copyright are privileges, not Rights. I have the Right to copy. Patent and copyright infringe on my Right for the benefit of society, not individuals, not businesses. Since society is not benefiting from them, it’s time to get rid of them, completely. No more patents; no more copyright.

  2. Chris Bruner says:

    One Judge gets it.
    Hopefully this is the start of a major backlash against patent and copyright law.

  3. @Chris “Hopefully this is the start of a major backlash against patent and copyright law.”

    I have been following this issue for many years and for most of that time the ball has been in the court of increased copyright control and redress. With the failure of SOPA, ACTA and recent directions from the Canadian Supreme court we are finally starting to see some ebb to that flow. As there is a shift of economic (and political) power away from ‘Hollywood’ to the technical industries there will be a consummate change in the halls of power, what is holding it back now is dead weight momentum.

    As this shift occurs it is very easy for one industry to take on the bad practices of the other. Amid this great change care should be taken to insure that both creators and consumers are not once again regulated to chattel.

  4. Ray Saintonge says:

    I’m not yet ready to leap to the position that there should be no copyrights or patents at all. I doubt whether those who take such a position have fully examined its potential consequences.

    If copyrights and patents are to be considered as property then they are a depreciable capital property whose value diminishes over time. It’s easy to accept that creators should have a fair return on their efforts, but the administrators, marketers and other parasites are not the creators.

  5. Devil's Advocate says:

    Full examination
    “I doubt whether those who take such a position have fully examined its potential consequences.”

    I could say the same about those who believe there’s still an application for the concept of “intellectual property”.

    As for “consequences”, you may be hard pressed to actually come up with any.

    “…the administrators, marketers and other parasites are not the creators.”

    This is one of the key reasons the whole IP game should be scrapped. As time wore on, we’ve arrived at a situation were EVERYONE BUT the “creators” are holding the rights and trying to milk the daylights out of them. These days, more business models are being built around extracting revenue from IP (both through licensing, etc. of permission, as well as legal actions) than actually producing anything.

    Considering copyrights and patents were supposed to benefit society, I’d say what we have now is a complete fail in that regard.

  6. abolish IP?
    “Considering copyrights and patents were supposed to benefit society”

    That’s the key question now isn’t it! And your conclusion regarding the usefulness of IP will be directed linked to how you answer it.

    Ironically it is the US constitution copyright clause which says “To promote the Progress of Science and useful Arts” and yet the US is the leader for trying to use IP to benefit corporations over society as a whole.

    The Berne Treaty says “This protection shall operate for the benefit of the author and his successors in title.”, which suggests society be damned. Sadly most Berne countries are currently tripping over themselves to create a more regressive system then even the US has ( witness Japan and Panama)

    So I think the purpose of copyright is not as obvious as you might think. Though I agree. I am sure there are many who have thought through the ramifications of abolishing IP all together (myself included). While I do agree there is a role for IP, I would contend that is is a far far far smaller role than it currently plays, and that the total abolishment of IP, while not ideal, would certainly be far better than the system we currently have.

  7. Shawn H Corey says:

    There is No Such Thing as Intellectual Property
    Ideas are not property. Anyone can have an idea. Anyone can use an idea. Ideas belong to the commons; the law says so.

    Copying is a Inalienable Right. When you learned to talk, you did so by copying your parents. When you learned to write, you did so by copying your teachers. Copying is what makes us different from apes. Chimpanzees are lousy at copying. We aren’t. To copy is to be human.

    Patents and copyright are privileges, not Rights. They were granted by the government to form monopolies. Monopolies make the rich richer at the expensive of everyone else. They do not help anyone but the rich. If you believe otherwise, you’re just a victim of their PR.

  8. Marilynn Byerly says:

    In the real world
    I hate to ruin the wet dream of no copyright for some of you, but it ain’t going to happen unless the Zombie Apocalypse arrives, and free online stuff will be the least of your worries.

    Copyright serves a vital function for creators by allowing us control of our material as well as, in most cases, a little bit of money.

    Without copyright, professional creators like novelists have no real reason to create or spend the time and money to improve their craft so all that free material you crave will dry up except for really bad fanfic.

    For whoever says that writers write because they have to or for “their art,” most of us will laugh in your face because we’re not your bitch.

    And, if you are going to talk about copyright at least understand it. Ideas aren’t copyright, but the creation from those ideas is. In other words, you can write all you want about some girl longing for a vampire, and you’re fine, but name that girl Belle and make the vampire sparkly, and the copyright police and Stephenie Meyer’s lawyers will all over you like sharks on chum.

  9. Ray Saintonge says:

    Rights or privileges
    When a conversation descends into abstract attempts at differentiating between rights and privileges it tends to lose focus. Similarly, debating whether intellectual property is really property, or a matter of human rights as in France, does little to move the concept along.

    Copyrights are primarily about money, and in common law countries only secondarily about moral rights. They arose because in the two centuries after Gutenberg the publishers learned to take unscrupulous advantage of the creators. Without copyrights at all they would do it again. Until the latter part of the 20th century members of the general public did not have the technical means to be significant players.

    Copyrights that extend well beyond a person’s life span provide no incentive for creativity. The struggling artist needs money to live on now, not a deferred benefit for his hypothetical great-grandchildren. In copyrights a term of comparable length to that of patents would be a fantastic improvement.

  10. Re: Rights or privileges
    To me, the idea that copyright is property is central to the discussion. Calling it a property allows people the ability to buy and sell the copyright… the value of the copyright is based upon its ability to generate revenue in the future. This means that the creator can sell their copyright, giving them cash today instead of cash tomorrow. Alternately a creator could create a work with someone else paying the bills (for instance, a newspaper writer) so the organization that employs the creator owns the copyright.

    And this is where the complaints about things such as the distribution of monies from the various copyright collectives goes horribly wrong as well. Since copyright can be sold, the revenue the copyright generates must be allocated to the owner, not the creator, if copyright is to be treated as property.

    Now, I fully agree with you that the term of copyright today is getting ridiculous… I can see the same length as patent protection for an invention; you may even be able to provide a convincing argument for twice that amount, but life plus 50? If the creator dies the day after creating the work, that is still about 4x the length of a patent. Does the creator deserve a reasonable revenue from the fruits of their labours? Certainly. The problem is that what one person considers reasonable someone else may not.

  11. If there’s nothing on the supermarket shelves, there’s nothing to take

  12. @Bob “If there’s nothing on the supermarket shelves, there’s nothing to take”

    According to the MPAA some 30 years ago the **VCR** was to gut Hollywood to just a handful of a few movie productions a year, if it didn’t kill it outright.

    Oh those dusty shelves …

    I think you rate the resiliency of the creative spirit too small.

  13. @Crockett
    No, I don’t. But I do strongly reject the “no copyright” movement. It isn’t practical if the only copy sold is the first one.

  14. Bob, I will distance myself from the ‘no copyright’ movement as you say. Expanding the definition of fair use by no means negates the law of copyright, but those who call for it abolition have, in my opinion, gone a bridge too far. But in the same vein, saying the VCR was to be the ‘Boston Strangler’ of copyright is somewhere over the rainbow as well.

    There is a certain dichotomy between user and creator rights but not absolutely, they do blur around the edges. What I am opposed to is the constant strengthening of rights to the copyright holder to the detriment of the general consumer, and even to some degree the creators themselves. The ridiculously ever lengthening terms, the holding back of orphan works and in the case of Bill C-11 the commingling of copy & property rights.

  15. bass ackwards
    Bob. Why is it not practical? Commissioned works, embedded advertising, government grants, and I’m sure that there are other creative ways one could make money of their creativity without restricting anyone else’s ability to freely copy anything.

    I agree that there is a role (albeit a small one) for copyright, but I disagree with your assertion that a world without copyright is a prima facie non-starter. In fact I think you need to start the discussion from this premise and figure out exactly what rights of copyright would be necessary and only implement those ones. Currently the discussion seems to be the opposite, by trying to give copyright holder all the rights possible and figuring out what should be clawed back from them. This is looking at the horse from the wrong end.

  16. @darryl
    I doubt we’re going to agree on this but…much of this discussion is led by people on six-figure public sector salaries who do not exactly write for a living. It might be an integral part of their job, but they don’t get paid less if what they write doesn’t sell. Most professors, for instance, produce scholarly articles. What they want is for them to be widely read, and so long as they aren’t using commercial publishers to achieve that goal, I don’t see any problem with those articles being copied. In fact, I think there is a very strong argument for changing copyright law so that this material is either public domain or is owned by the university that pays the salaries. Others, though, do write for a living. So to champion a copyright model that says, basically, that you sell one original and after that it’s open season for unrestricted and uncompensated copyright doesn’t strike me as realistic.

  17. @Bob
    What you are saying is that current business model where the right to copy is limited and those with that right can sell and make money from copies, wont work in a world without copyright. Well, we are both in agreement on that front.

    My contention which you did NOT address, is that there are other business models available and therefore there are alternatives to copyright, even for the novelists in the world. Also, that the role of copyright should be to provide SUFFICIENT incentive for creativity and no more, as to do so tramples on other persons rights and even stifles the creativity from creators who wish to build on others’ works. The discussion on appropriate balance of copyright should therefore start from the premise that there is none.

    Your discussion regarding the instigator of the thread can speak only to the possible motivation for that individual raising such questions, and says nothing regarding the merit of the topic itself, and is easily dismissed as an ad-hominem argument.

    I suspect that the core of our disagreement would stem from our own assertions regarding where the conversation should start, which in itself is good material for debate. 🙂

  18. @darryl
    If the average pay for doctors was $10 an hour, very few would decide to make it their career. So no, I don’t think I am coming at this from the wrong angle. To say that something that was created doesn’t really belong to the creator is not to advocate a zero-base approach to copyright. And even if we do take your basic premise, sufficient incentive has to start from a reasonable rewards basis. The rights of people who want to copy, or build on others’ works, can’t exactly go very far if there isn’t anything to copy or build on.

  19. Bob, the problem then seems to be not so much fair use as the apparent dismal returns creators get for their work. It is well known that creators often get pennies on the dollar, there must be better ways to increase their due.

    The obvious way is self promotion and distribution. Now I understand that labels/publishers are not just turn-styles but can offer valuable professional services but new technology & online resources, coupled with some entrepreneurship, can offer much of the same. It is counter-productive for the incumbent media industries to promote these alternatives and is why I believe there is so much resistance to innovation.

    I am one that does not think file sharing of commercial works outside of permission given is a good thing, but there needs to be some give as well. A good balance for me is once a media is purchased to use it as I see fit for my personal use (little or no DRM), but not give a copy to someone else. To make this work the other factor needed is goodwill, and this is my main point of contention for years. For new innovative models to work there needs to be a desire on both parties (creator & consumer) to make it work. Unfortunately we find ourselves with incumbents pushing for greater use restrictions and self destructive avenues of redress. The **AA organizations could not have made more of a mess of things if they tried. Users too need to understand if they just take and not support the creators there will less selection & quality to enjoy.

    What is the solution?
    First: dial back the rhetoric, the six-step model being trialed in the USA is at least an attempt in this direction.

    Second: loose DRM in all but streaming models, treat your customers with respect and to eran it in return. The fact that pirated media is more user friendly than purchased media speaks volumes.

    Third: don’t try to sneak restrictions into trade agreements to hoist on the rest of the world. Transparency and inclusive solutions are the only way to make this all work.

    Forth: Users need to buy into the above turnarounds and respect creators. Once again fans can be just that, participants and supporter of the arts and the people who create them. If people feel good about art and have a connection with those who produce it then it is positive and productive relationship. The mess of bad feelings and animosity created by a self-absorbed industry has to fade away.

  20. @darryl
    While there are other business models available, not all are created equal.

    One example that you gave is government grants; I have two issues with that one. The first is that such a model rewards all equally (if I understand the concept correctly), even if no one is actually interested in the work other than the creator. Secondly, where does the money for the grants come from? Its easy to say tax the rich to pay for it, but to me that isn’t the way to go about it; it would be waaay too easy to start paying out more and more in these grants than could be generated through increased taxation, especially if the fields which were compensated this way grew.

    The key to it all, as Crockett stated, is for all to start to respect the work of the creators and be willing to provide them with a reasonable return for their efforts; it still remains to be seen what constitutes reasonable. Unfortunately I can’t see the “no copyright” and “maximum copyright” groups going along with this. The other question is should copyright be transferable (bought, sold, and inherited) as it is today? And what about the cases where the work was created by someone in an employer/employee relationship (for instance, a staff writer with a newspaper)? In the case of a commissioned work, who owns the copyright? The creator, or the person who commissioned and paid for the work?

  21. Excuse the long post but……
    @Bob,”To say that some THING” created belongs to the creator, I agree with. As long as that thing is physical. If that thing is is a non-physical idea, story, image, or whatever, I disagree completely, because the manifestation of that ownership into the physical world is a restriction on what I can do. Restrictions on my interactions with other people totally unrelated with the creator and conceivably even alone in the privacy of my own home unable to be witnessed by anybody. Such rights are more aptly labelled statutory monopolies, and need to be regulated as such. Most agree that statutory monopolies should be as restricted as possible, hence the need to start the copyright discussion from the premise of no copyright at all.

    As Crockett said regarding the VCR, I think you over state your case regarding a world without copyright monopolies. All creativity would not come to an end and I think you would be surprised by how much there would be. Though as I said before, I do think there is a little room for some copyright protection, but I think it should be restricted entirely to instances of commercial exploitation.

    @Crockett, I have no issue whatsoever with DRM. I think companies should be free to employ whatever they want in that regard. In a world without copyright, DRM could conceivably give some value to old business models. At the same time I think consumer laws should give every consumer the right to control their purchased hardware I.E. the right to root and jailbreak should be protected by law and merchants should have to make it possible to do so.

    @Anon-K, Absolutely right. All business models are not created equal. Nothing for example can compare to having a good ol’ monopoly. Just ask Rogers or Bell when they are singing on their way to the bank. But, also like Rogers and Bell, what might be a good business model for them does not necessarily translate into good policy for society over all.

    As for government grants. True some work as you suggest, but not all. Some grants are tied to previous sales. The media levy is a form of taxation which attempts to do that. The Public Lending right program is tax money which comes much closer to doing that. As for your second point. Sure tax money is limited, so isn’t great that there are other methods to raise money for creators.

  22. Ray Saintonge says:

    I can’t find anything in the Copyright Act that allows copyrights to be sold. The only way they appear to be transferable is through inheritance. They may be assigned in a licence, and the heirs have a reversionary interest in the copyright 25 years after death unless it is specified otherwise in a will. The Act only defines the first owner. What happens to a corporate owned copyright when a company goes bankrupt, and no copyrights are mentioned in settling the bankruptcy estate? I would venture to say that there is no copyright in ther absence of someone to own it. Intangible properties, like copyrights or 99-year leases, don’t always behave like tangible properties.

    Whether an employer owns a copyright is really a question of the nature of the employment contract. This could go either way. In collective works recognizing a creator’s moral rights does not always imply retention of copyrights.

    My interests have had less to do with authors who die the day after publication than with the other end of things: Authors who published obscure journal articles in 1920 but didn’t die until 1986. Also, what happens with academic authors who had to pay to have their works published.

    Whatever our starting point for reconsideration of authors’ rights its the end point that matters.