Kernochan Center Executive Director June Besek Testifies on Fair Use before U.S. Congress

Besek, Former Director of Intellectual Property at Reuters America Inc., Addressed the House Judiciary Subcommittee on Intellectual Property at a Hearing Last Month.
New York, February 11, 2014—U.S. courts’ recent precedents on fair use threaten authors’ right to benefit from their creations, said June Besek, executive director of the Kernochan Center for Law, Media, and the Arts, in Jan. 28 testimony before the U.S. House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet.
During the hearing, “The Scope of Fair Use,” Besek argued that the concept of “transformative use” – that is, adding a new message or meaning to the original work or repurposing it for a different market – has greatly expanded fair use.
“Fair use is not a carte blanche to make unlimited use of others’ work, even for a socially beneficial cause,” she said. “The rights of creators and the interests of users must be balanced.”

As one example, Besek pointed to Google’s Library Project, in which Google digitized entire libraries of books. Google then provided digital copies to the source library and retained copies for its own commercial use, without compensating the creators of those works.

“It becomes increasingly difficult to explain to authors and the public alike a copyright regime that rigorously examines the extent of a single scholar’s partial copying while essentially according a free pass to a for-profit enterprise’s massive takings,” she said.

Besek concluded her testimony with the suggestion that legislation concerning mass digitization might help move the “pendulum” of fair use doctrine to a more productive balance between creators and users.

“Congress’ attention to these issues might relieve the pressure that has risked turning the doctrine into a free pass for new business models,” she said, “and thus restore fair use to its most appropriate role of fostering new authorship.”