Bound By Law?

• Author: Wang, Jessica Sawyer
• Position: Book review

BOUND BY LAW? By Keith Aoki, James Boyle, & Jennifer Jenkins. Durham, North Carolina: Duke University Center for the Study of the Public Domain. 2006. Pp. 74. $5.95; available for free at http://www.law.duke.edu/cspd/comics/.

INTRODUCTION

Students of copyright law quickly learn that the subject is counterintuitive. One of the first revelations of this is--somewhat alarmingly--the purpose of copyright itself. Contrary to popular belief, copyright is not just about protecting an artist's creation, but sharing it. (1) Simultaneously protecting a work and sharing it helps to fulfill the Constitution's mandate that Congress "promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings." (2) In other words, Congress is to promote learning and the advancement of our culture.

The symbiosis of protecting and sharing is effected through the Copyright Act. First, to encourage artists to create, the Act bestows copyright ownership and all of its attending rights to artists. (3) Second, to allow the public to have access to those creations--and the opportunities for learning that go along with such access--the Act limits the owner's rights. (4) In this way, protection of an artist's work is part of a "copyright deal" that the artist makes with the public. If the Copyright Act does not grant a particular right to an artist, then that means the right belongs to the public. Fittingly, works that are not protected by copyright are said to be in the public domain, and the same term applies to particular "aspects of copyrighted works that copyright does not protect." (5)

If copyright is counterintuitive in theory, it should be no surprise that it is equally counterintuitive in practice. This is especially true of the tricky doctrine of fair use, an essential aspect of the copyright regime. Recognizing the current state of confusion surrounding fair use, three academics decided to create a work that would contextualize, explain, and defend the concept. Their medium is a comic book and is entitled Bound By Law? Written by Keith Aoki (6) (who also provided the illustrations), James Boyle, (7) and Jennifer Jenkins, (8) Bound By Law? chronicles the experiences of a documentary filmmaker named Akiko. Akiko, encumbered by the current copyright system, learns that the solution to her problems is a strengthened doctrine of fair use. One might wonder why Aoki, Boyle, and Jenkins chose to convey their message in the form of a comic book. Their response is compelling:

For some strange reason, none of our intended audiences seem eager to read scholarly law review articles. What's more, there is something perverse about explaining an essentially visual and frequently surreal reality in gray, lawyerly prose. Finally, what could better illustrate the process we describe than a work which has to feature literally hundreds of copyrighted works in order to tell its story, a living exercise in fair use? (p. 70) In Bound By Law?, Aoki, Boyle, and Jenkins communicate to the lay reader why fair use should matter to everyone, particularly artists.

This Notice critiques Bound By Law?, analyzing the major themes of the book and suggesting that at least one additional issue should have been addressed. Part I describes the current confusion threatening fair use. Part II focuses on the book's three major themes, (A) the rise of a "rights culture," (B) the necessary balance that is missing from the present copyright regime, and (C) a consideration of an ideal copyright regime. Part III argues that a key issue is raised in Bound By Law? only implicitly and is never fully explored. The book should have addressed the fact that third-party, non-author owners of copyright skew the "copyright deal" envisioned by the Constitution. Such owners are a force driving the growth of the rights culture, and those who wish to preserve the integrity of fair use--and the copyright regime itself--must understand the role that these owners play.

1. CONFUSION: AN ARCHENEMY OF THE FAIR USE DOCTRINE

   Copyright law has been said to approach "the metaphysics of the law, where the distinctions are, or at least may be, very subtile [sic] and refined, and, sometimes, almost evanescent." (9) A particularly evanescent concept is that of fair use, which is one of the Act's built-in limitations on the rights of copyright holders. According to [section] 107 of the Act, fair use encompasses, but is not limited to, use "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." (10) Four factors should be considered when determining whether such a use is fair: "(1) the purpose and character of the use ...; (2) the nature of the copyrighted work; (3) the amount ... of the portion used ...; and (4) the effect of the use upon the potential market for or value of the copyrighted work." (11)

   Of course, it is not always easy to distinguish between an infringing use and a fair use. Consider the practice of sampling music--or otherwise borrowing and building upon musical ideas. The Supreme Court has set a good example in cases like Campbell v. Acuff-Rose Music, Inc., explaining that "[t]he fair use doctrine thus 'permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.'" (12) Unfortunately, too many lower courts are not following this philosophy, and some are even going so far as to equate ostensible fair uses to stealing. (13) One court has found that a sound recording consisting of but three notes did not even warrant an inquiry into fair use, (14 even though de minimis use--a use so small it flies under the copyright radar--usually is excused by courts. (15)

   And it's not just sampling that is slipping--or being pushed--outside of the safe haven of fair use. In Princeton University Press v. Michigan Document Services, for example, a copy shop preparing coursepacks for students was found to have infringed publishers' copyrights. (16) The shopowner, believing his business was within the education exception provided by [section] 107, (17) had refused to pay royalties to the publishers. (18) As the dissenting judge noted, "Ironically, the majority's rigid statutory construction of the Copyright Act grants publishers the kind of power that Article I, Section 8 of the Constitution is designed to guard against." (19) Decisions like these, deeming an ostensible fair use infringing or stealing, (20) mean that fair use has begun to seem not just evanescent or counterintuitive, but wrong. Indeed, the Copyright Office's own website counsels the public that "[t]he safest course is...