Fair Use for the Masses

I’ve been auditing a magazine writing/publishing course run through my local rec center over the break, partly for fun and partly to find out how professional and semi-professional writing teachers who are not copyright lawyers understand the nature of authors’ rights.

I wasn’t necessarily surprised at the number of inaccuracies in the lecture on copyright law.  Obviously, this is a very difficult subject to get across to people of various educational backgrounds and publishing experience.

But one suggestion made by an instructor really stood out for me because it resonates with some questions I have been pondering in recent articles about the role of strict liability in copyright law and the limitations of the fair use defense.  The instructor listed the four fair use factors from section 107, noted that they were very difficult to apply in practice and that each situation is different, and that her best advice to give to writers hoping to avoid copyright infringement claims when borrowing or quoting from the work of others is that if you feel like you’re doing something wrong in your writing, then you probably are.

So that wasn’t a legal opinion and was likely an off-the-cuff comment, but I wonder if it gets at something deeper.  Maybe subjective intentions really should play a greater role in copyright law than they currently do.  In a couple of recent articles, I have suggested moving away from strict liability towards a mens rea standard for copyright infringement at least in certain contexts (unauthorized noncommercial fan video mashups and blogs for example).  Perhaps bringing in a sense of ‘right and wrong’ does make sense, given the impossibility of explaining the contours of fair use to new and emerging writers and artists many of whom are experimenting with new forms and genres, and not making any money from others’ proprietary works.  In fact, much of what is currently licensed from copyright holders should probably be regarded as fair use in any event, but it’s often easier to pay a license fee than to argue about it in court.  Would a more ‘subjective’ system help us or cause us greater problems?