This is an interesting question. I am a member of two writing groups, and copyrights, fair use and intellectual property rights have been topics of much discussion lately. While copyright and intellectual issues are complicated and confusing, the area of fair use is a downright muddled mess.
To see what I mean by this statement, go to Ivan Hoffman's website and read his articles on fair use: Fair Use and Fair Use: Further, Further Issues http://www.ivanhoffman.com/helpful.html
The laws surrounding fair use are vague. There exist no fixed criteria such as a specific percentage of the body of work quoted or word count, and the courts decide each case based on individual circumstances. So, should a writer use a quote or snippet of another person's material in their work?
Members of both writing groups, many who are established, professional writers and publishers, strongly warn against this practice without getting permission from the copyright holder due to the risk of a lawsuit. As one individual pointed out, lawsuites are messy and expensive, thus, due to cost, the person sued loses even if they win the suit. One member pointed out that as a writer and journalist she uses quotes and bits from other's work constantly, and that this practice is both acceptable and legal under current laws. Another member gave an example of how his use of copyrighted material fell under the provision of fair use for educational purposes. However, even in these cases where the use clearly fell squarely within the defined limits of fair use, members within the group gave words of caution. The laws, thy pointed out, are just too unclear, the rulings of the courts too erratic.
How have we come to this point of having the right to use fair use, but do so with fear and uncertainty?
Neil Netanel has an essay titled, Why Has Copyright Expanded? Analysis and Critique, available in a free, downloadable PDF at http://ssrn.com/abstract=1066241
This essay delves into this issue, giving explanations on how powerful copyright holders have forced expansion of their rights through vigorous lobbying and by influencing legislation.
Bruce Kushnick has a fascinating article, located on Nieman Watchdog website, titled, How much of your state's legislation is being drafted by industry? http://www.niemanwatchdog.org/ Kushnick describes how the American Legislative Council (ALEC), a group funded by corporations, writes bills that serve the industry, gives donations and perks to legislators, and the legislators introduce and get the bills enacted. Yet, somehow, this is all legal, and since ALEC is listed as a nonprofit organization, taxpayers wind up footing the bill for the promotion of legislation which serves the corporations ALEC represent.
Copyright holder's power may increase a bit more. The House of Representatives recently introduced the Prioritizing Resources and Organization for Intellectural Property (PRO-IP) Act,H.R.4279. This act, if passed, will futher intensify enforcement of copyright, trademarks and patent laws and increase civil and criminal penalties and seizures for copyright infringement. A key issue in this bill is that this enforcement will target not only registered, but also unregistered intellectual property. I have to ask myself how the government intends to monitor intellectual property rights of everything unregistered. Will we see legal ISP filtering searching for, well, everything on the Net, registered and unregistered?
Going back to Neil Netanel's essay. He discusses how the current political course of associating the term 'private property' with a connotation of 'absolute right' is changing public perception of copyright to absolute right.
"The metaphors used to describe social practices and legal rules have a powerful impact on people's perception of them. For that reason, the copyright industry has assiduously promoted the notion that copyright is 'property' and that all who make unlicensed use of copyrighted material are 'pirates' or 'thieves'."
Nathanel points out that the lower courts are showing a trend toward treating intellectual property and physical property as equal. This line of thinking, he states, leads to a belief that copyright holders should have absolute control over copyrighted material and that any use of copyrighted material is a special circumstance.
Just today, in discussions in one writing group, one member made the statement that it was easy for people around the world to, "steal our copyrighted material". While there may be validity in his statement, the use of the word 'steal' indicated the brainwashing could be taking effect.
To quote Neil Nethanel:
"Copyright is meant to spur creativity and expressive diversity. When it has the opposite effect--when authors cannot freely build upon their predecessors' works in creating new expression and when copyright serves as a tool for entrenching media conglomerates--something has gone awry."
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