Prepared Statement of The Honorable Joe Barton

Fair Use: Its Effects on Consumers and Industry

Subcommittee on Commerce, Trade, and Consumer Protection
November 16, 2005

Good morning. Thank you, Chairman Stearns, for holding this important hearing. The doctrine of "fair use" has a long history in our country, and I'm glad that we have such a distinguished panel to talk about the issue.

It is extremely important to protect people's intellectual property, and our copyright protections stem directly from our nation's founding document. At the time that the Framers were meeting, piracy involved rogue sailors with cutlasses and cannon and a taste for gold. Their only worry with the law was that if it caught them, it would hang them. With some notable exceptions, today's pirates are more likely to come armed with computers and pocket protectors. They still don't have much concern for legalities, however, and they retain a taste for unearned wealth. The Framers didn't anticipate the digital age, but they did anticipate theft. It seems to me that they would have no problem identifying the modern pirates who steal other people's creative work and sell it. As this subcommittee has explored with hearings in the past, international and domestic intellectual property infringement is a real problem, and we must vigorously prosecute those who break the law.

I think that the people who wrote the Constitution also would recognize the difference between a pirate and a consumer. Copyright owners, for example, do not have eternal and complete control over their works. Over the years and with the Constitution as their guide, the courts have determined-and Congress has codified-certain restrictions, including the "fair-use" doctrine. Simply put, consumers are allowed to use copyrighted works without permission of the owner under certain limited circumstances. These limited circumstances have been a strength of our system, not a weakness. They allow paying consumers appropriate access to, and use of, copyrighted works. At the same time, ownership rights have been secured in order to encourage creativity and innovation. America is a nation that values ideas, and the freedom of Americans to innovate and invent is another of our great strengths. Fair use is a fundamental part of that.

I am concerned that some attempts to protect content may overstep reasonable boundaries and limit consumers' legal options, particularly in the light of the emerging technologies that we are beginning to see in the marketplace.

It boils down to this: I believe that when I buy a music album or movie, it should be mine once I leave the store. Who doesn't believe that? Does it mean I have unlimited rights? Of course not. But the law should not restrict my fair-use right to use my own property.

Current law provides that I am liable for anything I do that amounts to infringement, but current law also prevents me from making legal use of content that is technologically "locked," even if I have the key. This doesn't seem to make sense. In defending this conflict, some say that fair use leads to piracy, or that it is piracy. No, it isn't. By definition, "fair-use" is a use that DOES NOT infringe on owners' rights.

I am very interested in the state of content-protection technology. Is it effective? Has it limited consumers' fair use rights? How might these developments hurt consumers in the future? How has the consumer electronics industry been affected? How will it affect the research and scientific communities?

I look forward to finding some answers to these difficult questions and to a comprehensive discussion about the doctrine of "fair use," its historic origins, its future, and the real world effects in the marketplace.

Finally, I want to thank Mr. Boucher for attending this hearing today to hear from our witnesses and discuss the topic. He is not on the subcommittee, but has done important work trying to protect consumers' fair use rights. I want to welcome him, and commend him for his leadership on the issue.

Thank you, Mr. Chairman, and I yield back the balance of my time.

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