Copyright and the Evolution Wars. Copyfight: the politics of IP

Cory Doctorow thinks that the recent move by the NAS and NSTF to ban the use of their copyrighted materials as part of the Kansas standards is ill-conceived and poorly motivated. He says:

I don’t think this is a proper use for copyright. Copyright is not about endorsement or agreement, and its not a right to stop criticism, even ill-considered criticism. Quotation can be fair use even in a context the original author abhors — that’s precisely when we need fair use most, we on all sides of the political debate.

I agree to a small degree, but disagree in the big picture.

Copyright is at its core a legal right: it establishes a monopoly on derivative works for the creator, subject to certain rational provisions which have been established by case law. One of these provisions is the doctrine of fair use. If the Kansas BOE’s use of NAS and NSFT materials is a fair use, then they do not need the permission of those organizations to include their materials in their standards. If their uses are not fair use, then they do. That’s just what the law says. Unfortunately (or fortunately, depending on your point of view) fair use rights have been rather flexibly interpreted over the years, and have been very strictly interpreted in certain cases, and rather loosely in others. What is certain is that if the Kansas BOE moves ahead without removing the offending material, the NAS and NSFT could file for an injunction to halt their distribution, and we will have to answer this “fair use” question in court.

It is entirely within the rights of a copyright holder to keep derivatives of their work being created which are not fair use, and they can do that for any reason whatsoever. The NAS and NSFT are merely trying to keep their mantle of respectability from being adopted by organizations which do not hold the same goals or aims that they do using their rights under the law.

I see nothing remotely incorrect about that.