Singularity Law

For many years (probably since fair use began), copyright owners have viewed fair use as some sort of government sponsored piracy of their creative efforts. But since a copyright has never been viewed as a monopoly, and the rights granted are constrained by the constitutional grant, fair use has always been viewed as part of the “bargain” struck by copyright law.

A recent study by the Computer & Communications Industry Association shows that there are many industries that rely upon the fair use doctrine, and that those industries contribute significantly to the U.S. economy. The study was done using the same methodology as used by the World Intellectual Property Organization (WIPO) in determining the amount of revenue lost from the copyright industries. (More after the jump.)

The study looks at those industries that benefit from the availability of copyrighted works under the fair use doctrine of 17 U.S.C. § 107. These industries include:

• manufacturers of consumer devices that allow individual copying of copyrighted programming;
• educational institutions;
• software developers; and
• internet search and web hosting providers.

Just based upon these few industries, the study shows that these industries generated revenues of $4.5 trillion in 2006 – approximately 1/6th of the total U.S. gross domestic product. While some can argue that not all of the revenues of these specific industries are generated from the fair use of others’ copyrights, and indeed much of what these industries product is original, copyrightable works. And others can argue that there are many instances of fair use in other industries, such as the motion picture industry, the book and magazine publishing industries, and the music industry, which are not included at all, but which also contribute to the fair use driven economy.

Many will argue with the numbers and the methodology. But even if fair use only contributes half of what the study shows, that it still over $2 trillion per year. In addition, these companies employ millions of workers, and much of our foreign trade consists of products produced by these industries.

While copyright owners will continue to denigrate the social value of allowing fair use of copyrighted works, this study makes clear that fair use is an important driving force in our economy, as well as the economies of most other developed countries, and should not be ignore, vilified, or legislatively narrowed.