CONTEXTS

Applied ResearchTyAnna K. HerringtonHealth Organization—cooperated to producecommunications that would protect the world’spopulations. Nevertheless, these products are subjectto protections and limitations of international law thatare advantageous in some cases and disadvantageous inothers. Technical communicators who participated indeveloping responses to the potential crisis still have astake in the treatment of their work.Another example of a less exigent situation thatinvolved global product development is that of technicalcommunicators who worked on the Adobe Flex 2online Help system, which grew out of contributionsfrom users around the world. Not only would it bedifficult to determine how to allocate benefits from thisproduct’s use, but determining the source for licensingcould be extremely problematic. Two more examplesillustrate the differences in treatment of intellectualproducts from one venue to another. A technicalcommunicator might create a strongly protected workin a European Union venue that employs moral rightslaw but find that the same work would be accessible tothe public by way of fair use in a U.S. venue. Anothertechnical communicator, by way of fair use, mightbe able to reverse-engineer a structure for providinginformation clearly and effectively in a U.S. venue butmight be inhibited from creating a new product on thisbasis in a more protectionist international locale.Overview of Fair Use and Its SourceFair use is a legal structure that derives from U.S. law,and this context is significant for understanding whyfair use exists and how it operates. U.S. intellectualproperty law is unique because it is based on a primaryconstitutional goal to support knowledge creation,education, and innovation (see Herrington, in press).Advancing this goal, in turn, provides a foundation fordemocracy and individual self-actualization. The U.S.Constitution gives primacy to its educational goal bymaking the rights of authors and inventors supportiverather than primary. The promotion of education andknowledge development is made possible throughan incentive to authors that encourages creation andallows them to benefit from their efforts, but theirexclusive right to their creative products is limited.Creators’ control is subject to a time limit that providesfor a public domain, as well as other constitutionallimits, such as free speech and information accessassurances, that underpin individual rights andegalitarian access to the democratic process.U.S. Fair UseThe American approach is unique in its use ofutilitarian policy as a driving force behind intellectualproperty law. More common, particularly amongwestern European countries, is a moral rights (droitmoral) or natural rights approach to creative productdevelopment that focuses on the rights of theauthor. The moral rights approach connects authorsdirectly to their work, treating intellectual productsas representational and also as personal. Under amoral rights treatment of copyrighted work, thefocus is on the needs and interests of individualauthors. In contrast, the U.S. intellectual propertyprovision establishes intellectual property law as ameans to support policy goals as a basis for ensuringthe operation of the U.S. system of democraticgovernment. U.S. statutory law, particularly in thefair use doctrine, reflects the constitutional basis formeeting the nation’s goals to expand knowledge,support democratic interaction, and promote selfactualizationand individual rights. Fair use is a key partof the 1976 Copyright Act and remains the legal basisfor treating U.S. copyright today. The fair use doctrinehelps effectuate the Constitution’s goals by allowingthe use of copyrighted materials without permissionif the context of use adequately meets the statute’srequirements (1976 Copyright Act).In contrast to moral rights law, U.S. fair uselaw allows its citizens to use otherwise inaccessibleintellectual products as a basis for participating inand influencing society. This helps to make possiblean educated citizenry that is capable of maintainingdemocracy, enabled by support for activities such asnews reporting and the criticism and commentary thatform the core of democratic interaction and individualself-actualization. Technical communicators may useothers’ intellectual products (within the limits of fairuse) to create their own and, thus, participate in aprocess of exchanging ideas.Volume 57, Number 3, August 2010 l Technical Communication 321