Foul Play? CCIA Contends Companies Mislead Consumers About Fair Use

Article ImageThe next time you watch a Major League Baseball or National Football League game, pay close attention to the disclaimer that runs at some point during the broadcast. Yes, it implies that you can’t talk about yesterday's game with your friends without written consent of the league.

While a copyright notice is not required in the United States, many companies place restrictive notices on DVDs, books, television programs, and other content to protect their rights. But many believe that companies go too far, forgetting that U.S. law makes exceptions for fair use of materials, according to a complaint to the Federal Trade Commission filed in early August by the Computer and Communications Industry Association (CCIA).

The Fair Use Doctrine, as outlined in Section 107 of the U.S. Copyright Act of 1976, attempts to strike a balance between copyright holders and those who seek to use copyrighted materials for noncommercial uses, parodies, or transformative works.

CCIA, a nonprofit association of technology firms dedicated to preserving fair and open competition, represents more than 600,000 workers at companies with annual revenues in excess of $200 billion. The association believes that the language used in copyright notices is often designed to mislead consumers about their rights under the Fair Use Doctrine. Such misleading statements can hamper what's increasingly becoming a knowledge-based American economy, CCIA contends.

To bolster its case, CCIA commissioned a study that shows one in eight American workers are employed in industries that benefit from fair use provisions. Companies in those industries generate $4.5 trillion in annual revenue, an amount equal to one-sixth of the nation's economy and a 31% increase from 2002.

The study was conducted in accordance with a World Intellectual Property Organization methodology and released during a Capitol Hill briefing Sept. 12.

"This issue is important because these misleading statements are so pervasive and ubiquitous that it becomes part of the culture," says Ed Black, president and CEO at CCIA. "As evidenced by the overwhelming impact of the fair use economy, protecting those who use information properly through the Fair Use Doctrine must be safeguarded."

Felicia Boyd, partner and intellectual property attorney with Faegre & Benson LLP, believes that CCIA would have to push for congressional intervention to achieve its goals. "I don't see this as an issue for the FTC," says Boyd, who has managed copyright enforcement campaigns for such clients as the Business Software Alliance, Microsoft, ASCAP, the Motion Picture Association of America, Macromedia, and the Recording Industry Association of America. "CCIA might see exceptions to fair use, but the content provider may not think there is any fair use available."

She calls the Fair Use Doctrine "a balancing act between proper use and possible exploitation."

According to the U.S. Copyright Office, Section 107 of the 1976 Copyright Act contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. On a web page explaining fair use, the office acknowledges that lines around this issue are not black and white. "The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

Regardless of what lawmaking or regulatory body ultimately takes up this issue, the CCIA wants fair use enforced to protect the growing fair use economy, which would make discussing that Hail Mary pass that won the big game OK too.