House Judiciary Ponders Fair Use

Just what was and wasn't a transformative work in terms of fair use protections was a hot topic in a House Judiciary Subcommittee on Courts, Intellectual Property and the Internet hearing on that carve-out from copyright protections.

The witnesses had much to say on both sides of the debate on whether fair use has kept up with the digital transformation of content. Subcommittee Chairman Howard Coble (R-NC) set up the debate with the observation that the strength of fair use was its ambiguity, which leaves the courts to clarify on a case-by-case basis, but that ambiguity was also its greatest weakness. American University professor Peter Jaszi carried the standard for a broad interpretation of fair use. Asked by Coble whether a definition of "transformative" should be codified, Jaszi said it would be great mistake to "arrest the judicial process by reducing it to a narrow definition." He also said anyone arguing to narrow fair use had a high bar to clear.