PANEL LOOKS INTO HOW TECHNOLOGY TRANSFORMS THE TRADITIONAL APPLICATION OF "FAIR USE"

Washington, Nov 16, 2005 - "This doctrine allows the free use of copyrighted material for purposes such as comment and criticism, news reporting, teaching, scholarship, and research," explained Rep. Cliff Stearns (R-FL), Chairman of the Commerce, Trade & Consumer Protection Subcommittee. "Yet, rapid advancements in digital media and the Internet were not even imagined during the formation of the fair use doctrine."

Jonathan Band, testifying for the NetCoalition, representing the Internet's innovative companies, stated, "Entertainment companies understandably seek to prevent infringement of their works through the use of digital right management systems. But such DRMs typically preclude fair uses as well as unlawful ones. AS DRMS become more pervasive, Congress may need to consider mechanisms for preserving fair use."

The Director, Center for the Study of Digital Property, The Progress and Freedom Foundation, found that fair use was no longer relevant. He testified, "In sum, fair use is a doctrine that has outlived its usefulness. Properly understood, much of it is based on problems of high transaction costs at a time when the Internet is wringing transaction costs out of the system."

Paul Aiken, representing the Authors Guild, defended protecting copyrighted materials and gave a difference perspective on fair use. "Fair use doesn't mean free use of entire works - that's the realm of genuine public domain. Fair use, in fact, has been transmuted by some into free use or good use or any other use that some interest group, industry, or corporation wants to make of copyrighted works without paying for them."

Concluded Stearns, "I think one answer to this dilemma is developing technology that allows a consumer the ability to make limited copies of a copyrighted work, this protecting the consumer's fair use while protecting the rights of creators. Given the lack of consensus on this important issue, it may be helpful to look at a legislative response such as provided by H.R. 1201, offered by my colleague Rep. Rick Boucher (D-VA).