iCopyright? iCopywrong? Whither fairness?

While I was starting to write a post (to be put up soon) on the MPAA joining 7 Indian companies something very interesting caught my eye. I wanted to post a short excerpt from the Associated Press article that I first saw it from, but was stopped by something I found rather peculiar. Scrolling down, at the bottom of the article I saw a hyperlink provided by iCopyright, entitled “click here for copyright permissions”. I had intended on excerpting a couple of lines from the article to critique, and hence would be covered adequately covered by a fair use exception; however, I thought that providing such a link was a welcome change in the internet world, where one is never sure of who’s copyright one is infringing upon (not that the non-digital world is a lot easier!)

My pleasant surprise however, quickly turned to sour when I saw what was on the other side of that link. From 5 words and onwards, there is a license fee from $7.50 up to $75 for posting excerpts for Educational and Non-profit use. [‘for profit’ uses are charged at a different rate].

There is also the following statement: “Please honor copyright! Piracy hurts creators, devalues their works, and puts you and your employer at risk“. I note that there is no mention of fair use/dealing anywhere on this page, however, I’m certain that for legal purposes it must be mentioned somewhere. True enough, buried 3 or 4 links from the starting page, there is a page where it is mentioned that fair use/dealing does not require licenses, with the ‘disclaimer’ that its never certain as to what consists of fair use/dealing, and the ‘friendly advice’ that the safest option is to get a license, leaving it implied that there is always a risk to assuming you fall under an exception. There is also a brief page stating that iCopyright (the company enforcing the licenses) has the technology required to track down unlicensed uses.

Hypothetically, had I been a lay user who wants to respect copyright, I have the following points, and only the following points in front of me:

• I should seek a license for posting an excerpt of 5 words or more.
• If I dig far enough to find that there is exists a fair use exception, I see a bunch of variables with no clear mention of the exceptions which would provide me a safe harbour.
• Me and my employer are at risk if I don’t take such a license.
• They have the technology required to track me down if I decide to take a chance.

I think I can safely say, my reaction would be one of the following:

• It’s not worth excerpting. Forget about putting it up.
• Pay up.

….. Even if I was entitled to make use of it for free under a fair use exception.

Now, I’m sure that this won’t stop users who know what their rights are, and when they would fall under a fair use/fair dealing exception. There are also plenty of users who wouldn’t bother to check for such a license in the first place. I also acknowledge that they are technically not saying anything untrue, and ‘can’ claim that they are merely stating facts. But, in a world where there is such a strong push for more awareness and respect for copyrights, is this really the kind of scenario we want to see pushed forward? – one with such a bias of information flow, which I’m submitting is as close to legitimately ‘threatening’ users into paying them, regardless of the type of use.