This post was inspired by a couple of tweets by Ryan Regier:
Understand that authors want to get paid, maybe need to rework our fair dealing arguments so we show how fair dealing ultimately helps them?— Ryan Regier (@ryregier) July 14, 2017
These tweets got me thinking about the contradictions that underlie the modern concept of copyright. In many ways, copyright has to be understood as a mechanism for the protection of private (economically significant) property. Copyright is a provides legal limits on how material resources may be used with or without an economic exchange. In essence, copyright provides a framework for contracts.
The contract is one of the founding myths of capitalism, as a glance into Milton Friedman’s Capitalism and Freedom will show.
In the complex enterprise and money-exchange economy, co-operation is strictly individual and voluntary provided: (a) that enterprises are private, so that the ultimate contracting parties are individuals and (b) that individuals are effectively free to enter or not to enter into any particular exchange, so that every transaction is strictly voluntary. (20)
The role of the state in this view is
to protect our freedom both from the enemies outside our gates and from our fellow-citizens: to preseve law and order, to enforce private contracts, to foster competitive markets. (10)
This view of the primacy of the contract-relationship is predicated on another of the founding myths of capitalist society, that of the uncoerced, fully-rational individual.
In summary, the organization of economic activity through voluntary exchange presumes that we have provided, through government, for the maintenance of law and order to prevent coercion of one individual by another, the enforcement of contracts voluntarily entered into, the definition of the meaning of property rights, the interpretation and enforcement of such rights, and the provision of a monetary framework. (31)
From this perspective, then, the problem with any kind of fair use/fair dealing provision is not - or not only - that creators go uncompensated (uncompensated creation is one of the cornerstones of capitalist production after all), but that it circumvents the contractual relation. Material resources copied and exchanged outside of a contract - either with Access Copyright or with the creators themselves - is seen as a failure on the part of the state to uphold its responsibilities as enumerated in the last Friedman quote above.
However, as the Supreme Court has maintained, fair dealing is a user right. However, even stating that fair dealing is a user right merely exposes rather than resolves the underlying property conflict. The relations between creators and users, if it is not contractual, has to be antagonistic - not necessarily in a moral sense, but in the sense of the sanctity of property and contract. As the Supreme Court said,
Fair dealing is a “user’s right”, and the relevant perspective when considering whether dealing is for an allowable purpose under the first stage of CCH is that of the user.
The purpose of the fair dealing exception […] is to ensure that users are not unduly restricted in their ability to use and disseminate copyrighted works.
(Both Supreme Court quotes are from Michael Geist’s blog post on Access Copyright v. York
What we have here, then, is a property-protection mechanism which is circumventing the contract, the main property-protection mechanism in capitalist society. The real reason authors and copyright “collectives” are up in arms about fair dealing and are trying to restrict it is not only - perhaps not even primarily - because of lost revenue, but because it undercuts the sanctity of the contract in capitalist economic relations.
But what about creators, those who, unlike Access Copyright, are perhaps losing income through a broader interpretation of fair dealing? Myron Groover brought up the question of representiveness of creators rights advocates. Do we hear more from them because they are louder/more vocal? What about the creators who believe their work should benefit from the wider dissemination and use supported by fair dealing.
In a nutshell, what individual creators think about this issue is not particularly relevant. Just as individual capitalist may not want to exploit their workers, but are forced into it by competition and other exigencies of the capitalist mode of production, so creators are forced by virtue of their class position to behave in certain ways and to take certain positions with respect to the protection, exchange, and use of their property. Creators who have day jobs that pay the bills are primarily workers, their primary form of income is through the sale of their labour power, with all the coercive elements that comes with. Creators who are the heads of large business concerns, like Beyoncé and Jay-Z, are capitalists who will protect their property rights just like any other capitalists. It seems, though, that the majority of creators who are vocal about creators rights are those who are able to eke out a living by selling the product of their labour. Their opinion on whether fair dealing is a healthy and necessary part of any copyright regime is beside the point, which is that they are forced to protect what little economic benefit they gain from the sale of their work by any means possible.
Which brings me to my last point. The word “fair” in “fair use” and “fair dealing” is an obscene euphemism. Just as Friedman’s insistence on the lack of coercion in capitalist exchange relationships would be laughable if it did not obscure such misery, the idea that anything connected to capitalist property relations might be “fair” is ridiculous. We - citizens of our liberal democracies - have to go to court again and again to try to maintain a little breathing room under the pressure of capitalist exchange relations, what Marx and Engels in the Manifesto referred to as the “cash nexus” to which every human relationship is eventually reduced. Dealing can only be described as “fair” within the context of the liberal pluralist model of governance that is our government’s aesthetic, and it cries out for demystification at every turn. However, we too are forced by the logic of capitalist production and exchange to take what we can get. It may not be fair - to any of the parties involved - but it’s currently all we have.
Addendum (July 15, 2017): I realize that in the above I didn’t spell out the conclusion strongly or clearly enough. Given that creators and users are both exploited in the current situation, one through the inability to contractually exchange their work for revenue, the other through the prohibitive barrier to use caused by the prices of the resources being exchanged, it seems clear that the only way to resolve this contradiction is not to tinker with the details of copyright legislation or the fair dealing exception, but to fundamentally overturn the property relations that underpin them. Creators will always be at the mercy of exploitative market forces as well as being more and more alienated from the (very personal) products of their labour, and users will always be seeking non-contractual or illegal workarounds to use the resources they need for work and study. The only solution, really, is for both sides of to come together, recognize their common interest, organize, and work towards the overthrow of capitalist economic and social relations. dealing