Through the Looking Lenz – A discourse on Fair Use

wikipedian_protester-774177The US Court of Appeals for the 9th Circuit last week issued its landmark ruling in the case of Lenz v. Universal, arguably changing the face of fair use and takedown notices from the ground up. This post analyses the theoretical idea of ‘fair use’ in the context of the Court’s ruling in this case compared with existing Indian law, also commenting on the true nature of fair use in copyright law.


The rather famous case of Lenz v. Universal started (in 2007, eight years ago now) with a YouTube video, starring Stephanie Lenz’s child, then a toddler, dancing to a song by the artist Prince. Universal Music Group sent a takedown notice to Lenz over the music used in the video, and she turned to EFF for a pro bono counsel. The two parties then went to court over whether Universal’s use of the takedown notice was flawed and in violation of the Digital Millennium Copyright Act (‘DMCA’).

The argument was ostensibly about ‘misrepresentation’ under S. 512 (f) of the DMCA, but I would argue that this was an argument that spills over onto the very nature of ‘fair use’. As the Court put it in the Lenz case, the question was “whether copyright holders have been abusing the extrajudicial takedown procedures provided for in the DMCA by declining to first evaluate whether the content qualifies as fair use”, quite a broad topic.

‘Fair Use’ and the nature of Intellectual Property Law

The fundamental theories of copyright law argue that granting a limited monopoly to the creators of works with public value allows them to benefit from it, and therefore incentivises them to create more, thereby creating a cycle that keeps adding to ‘public value’. The quintessential aim of copyright law, therefore, is not to create the limited monopolies, which has nowadays become its focus, but the creation of ‘public good’.

Viewed from this perspective, it becomes but natural to see that fair use is itself a core aspect of the functioning of copyright law, as it promotes the use of a creator’s work for the creation of more public good, without actually affecting their monopoly, business or profit. The difference, therefore, is between seeing ‘fair use’ as a right versus seeing it as a defence. Rights are, crudely put, an entitlement under law, constitutional or otherwise, while a ‘defence’ is not only rather limited in scope by default, but is also only relevant when the person claiming it is already being prosecuted. By rights, keeping in mind the fact that the very nature of copyright law and its object and purpose is to promote public good, the former interpretation should be preferred.

And this is where Lenz v. Universal comes in. As the Court states in the Lenz case “Fair use is not just excused by the law, it is wholly authorized by the law.” (emphasis added) Universal’s argument in this case is what is the default position in India; that “fair use is not “authorized by the law” because it is an affirmative defense that excuses otherwise infringing conduct”, a contention that was rejected entirely by the Court.

Indian Jurisprudence

The general view in Indian jurisprudence tends to be that ‘fair dealing’ (which is a cousin of the American ‘fair use’ doctrine) is a defense to be used after the fact, which essentially means that it doesn’t affect the ‘infringement’ at all. ‘Fair dealing’ therefore ends up simply as a set of pigeonholes for the grouping of certain forms of ‘infringement’ which are treated as exceptions. The actions in question are still considered ‘infringement’, exempted by law. This is evident from the excerpt from the recent landmark Delhi High Court judgment in the case of Chancellor Masters & Scholars v. Narendra Publishing House, which Matthews has discussed in great detail here, where the Court states that “The doctrine of fair use or fair dealing is an integral part of copyright law. It permits reproduction of the copyrighted work or use in a manner, which, but for the exception carved out would have amounted to infringement of the copyright.” and “the doctrine of fair use then, legitimizes the reproduction of a copyrightable work.” Interestingly enough, as Matthews points out, the Court here did not limit itself to the Indian legislation’s strict ‘fair dealing’, but even the broader concept of ‘fair use’.

Thus, while fair dealing seems to be relegated towards simply existing as an ‘affirmative defence’, I would argue there is substantial room for its development as a separate, self-supporting doctrine promoting public good, as established in Lenz. Admittedly, fair dealing is still widely used in public good arguments, and it is in this very sense that the Chancellor Masters case interprets it. But making these arguments from the locus of a ‘right’ is very different from making the same argument from that of a ‘defence’.

With Lenz v. Universal, the Court of Appeals has hopefully cemented into the American copyright law a very welcome interpretation of ‘fair use’, which will benefit the ‘public good’ for years to come. This interpretation is particularly useful in its context of DMCA takedowns and online content, as the ‘individual content creation’ based internet economy provides one of the most massive and efficient platforms for the creation of ‘public good’ in the form of content, as is quite evident. And with Lenz v. Universal, American jurisprudence has given us a lesson that we would do very well to learn ourselves. Recently, we have had substantial reasons to worry about the direction our intellectual property jurisprudence seems to be taking. An incorporation of Lenz’s basic legal position into our law would go a long, long way towards fixing the same. It would not be a panacea, of course, and even this doctrine has its pitfalls. But I would argue that it is something that brings us closer to the quintessential goal of copyright law.


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