The knowledge generated by we humans is a common wealth. The following executive summary is from the Free Expression Policy Project at the Brennan Center for Justice, NYU School of Law
http://www.fepproject.org/...
"recommendations include creating a clearinghouse for information,
including sample replies to cease and desist letters and take-down
notices; a legal support network; outreach to Internet service providers
to encourage help for those targeted by take-down letters; and changes
in the law to reduce the cost of guessing wrong about fair use."
The summary follows:
"Will Fair Use Survive? Free Expression in the Age of Copyright Control"
from the Free Expression Policy Project at the Brennan Center for
Justice, NYU School of Law
http://www.fepproject.org/...
Executive Summary
""Fair use" is a crucial part of our copyright system. It allows any of
us to quote and reproduce parts -- or sometimes all -- of copyrighted
works, if the use advances creativity and democratic discussion. There
are similar free expression safeguards in trademark law. Together, they
assure that the owners of "intellectual property" cannot close down the
free exchange of ideas. These safeguards in our copyright and trademark
systems are at risk today. Threatening "cease and desist" letters cause
many people to give up their fair use rights. Even more troublesome are
"take-down" notices sent by copyright owners to Internet service
providers, which pressure them to remove online speech without any court
having ruled that it is illegal.
Additional hurdles to fair use come from the "clearance culture" in
many creative industries, which assumes that almost no quote can be used
without permission from the owner. Meanwhile, educational "fair use
guidelines," which are often narrower than fair use law, prevent many
teachers from copying material for their classes. In late 2004, the
Brennan Center for Justice began a research project to learn how well
fair use and free expression are faring among artists, scholars, and
others who make critical contributions
to culture and democratic discourse. We conducted focus group
discussions, telephone interviews, an online survey, and an analysis of
more than 300 cease and desist and take-down letters that have been
deposited with the "Chilling Effects" Clearinghouse. Our discussions
with members of PEN American Center, Women Make Movies, the College Art
Association, and the Location One Gallery yielded two common themes. The
first was that artists and scholars have great interest in, and
confusion about, fair use. The second was a need for community support
and pro bono legal assistance in their dealings with publishers,
distributors, and other cultural gatekeepers. Our analysis of 320 cease
and desist and take-down letters from the Chilling Effects Web site
indicated that more than 20% either stated weak copyright or trademark
claims, or involved speech with a strong or at least reasonable free
expression or fair use defense. Another 27% attacked material with
possible free expression or fair use defenses. Thus, almost 50% of the
letters had the potential to chill protected speech. The materials
targeted by the letters ranged from criticism of a Scientology-like
"planetary enlightenment" program to parodies of American Express and
Mastercard. Our telephone interviewees included the creator of a parody
New York Times corrections page, an editor at the Cape Cod Voice, and
small entrepreneurs using such terms as "Pet Friendly" Travel or "Piggy
Bank of America." Five of them had strong or at least reasonable fair
use or First Amendment defenses, and four had possible defenses.
Another seven received cease and desist or take-down letters with weak
copyright and trademark claims. Yet nine of the 17 people we interviewed
acquiesced in the copyright or trademark owners' demands, or had their
material removed because of take-down letters. 290 people filled out the
online survey, expressing opinions about, and experiences with,
copyright and fair use. Their stories ranged from an artist who made
"Homeland Security" blankets to a fan fiction Web site that posted a
story called "Gaelic Dreams" and received a cease and desist letter from
the "Gaelic Dreams" import company. Numerous teachers and scholars
expressed frustration
with a clearance culture that locks images out of public view whenever
an owner refuses permission or charges too high a price. What can be
done to bolster fair use and free expression in the digital age? Our
recommendations include creating a clearinghouse for information,
including sample replies to cease and desist letters and take-down
notices; a legal support network; outreach to Internet service providers
to encourage help for those targeted by take-down letters; and changes
in the law to reduce the cost of guessing wrong about fair use."
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