These are your rights….

While my library is having a couple of formal events I’m plugging Fair Use week in my blog (theconfirmationbias).     The usual disclaimer that I am not a lawyer AND, in this case, this is me as an individual not me representing Notre Dame!

The Clash’s  Know Your Rights  with its frightening warning that “You have the right to free speech as long as you’re not dumb enough to actually try it” is just as timely today as it was in 1982 when it was released.

You probably know that the right to free speech is in the first amendment, along with the right to free assembly and the prohibition against any religious test for participation in this, our happy republic.  But you might not know that our intellectual property law ALSO starts in the first amendment.  Yup, intellectual property law is the love child of the first amendment and Article 1 section 8 of the Constitution.

First Amendment

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Article 1 section 8 of the Constitution

“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

Those two short passages written a couple of hundred years ago are the basis of your right to do everyday things like:

  • record a show to watch later
  • quote a passage of a book or article in a paper on a website or a blog
  • parodies and satire (SNL, Weird Al)
  • memes (one does not simply….)
  • criticize our government
  • buy a generic drug (patent law)

You don’t even think about those things, but we enjoy those rights because they ARE rights granted under the Constitution and written into Federal Code such as Title 17 US Code.  Fair Use Week, February 20-24, 2017 celebrates those rights.  Copyright is part of intellectual property law but it’s not like physical property; it’s a series of rights that are granted  but LIMITED by the same law. Sections 107 and 108 take some of them away and, eventually, time takes them ALL away.

Have you enjoyed Benedict Cumberbatch in Sherlock?   Sherlock Holmes is in the public domain.  Did you enjoy Disney’s Beauty and the Beast?  That story is public domain.  Have you printed off a recipe from King Arthur?  This chocolate cake is amazing and the biggest part of every recipe is fact and can’t be copyrighted.  Weird Al’s “Amish Paradise” is a parody and protected.

Fair Use is the awesome sauce we put on every bit of scholarship we do. Can you imagine scholarship if you had to pay royalty to make a copy of every article you want to read?  Can you imagine scholarship if you had to pay royalties for every passage you wanted to quote?  Can you imagine the state of democracy if you weren’t allowed to criticize the president?  Oh, wait…..

Our fair use rights are under threat–the term of copyright began as 14 years with a possible renewal of 14 years.  It was extended to 28 years with a possible renewal of 14 years.  Since 1996 copyright is now life of the author plus 70 years but, in the case of corporations the term is 95 years and potentially 125 years.  Copyright’s purpose is  drive MORE creativity, that’s why it says “limited time”–it’s not to provide heirs with cushy life styles or to ensure that Mickey Mouse always remains the property of Disney Corp.

You’ve seen those signs by scanners and printers about Warning: maybe be protected by copyright blah blah blah.  The law requires that those notices.  It DOESN’T require that we tell you that not everything can be copyrighted, that most of the Federal government publications are in the public domain (never covered by copyright), that works published before 1923 are in the public domain OR that there’s such a thing as fair use.  And THAT is why it’s important to keep the copyright office under the Library of Congress–libraries have been defending our intellectual freedoms for centuries and we need our national library to protect those most basic freedom, to quote, to criticize, to parody, to transform–all the components of our vibrant, creative and innovative society.


Collette Mak