Reclaiming Fair Use: How to Put Balance Back in Copyright
By Patricia Aufderheide and Peter Jaszi
University of Chicago Press 2011
If it weren't for Pat Aufderheide, the concept of Fair Use--an integral part of our nation's original copyright legislation--would have remained mostly ignored or forgotten; one less tool available for the creators of new works to have at their disposal. Most of us know Aufderheide in her role as director of the Center for Social Media at American University. She, along with her co-author, Peter Jaszi, are the prime movers in the ongoing development of Codes of Best Practice in Fair Use being facilitated by the Washington College of Law, where Jaszi is a professor of domestic and international copyright law, in conjunction with the Center for Social Media. The importance of their work has been recognized by the support of the Ford Foundation, the Rockefeller Foundation, the Haas Family Trusts, the Hewlett Foundation, the John D. and Catherine T. MacArthur Foundation and the Mellon Foundation.
But perhaps I'm getting ahead of myself. I've made the assumption that anyone reading this review knows what Fair Use is, and understands why we should care. For those of you who don't fall into this category, this book is for you, and you don't have to identify yourself as a "creator of culture" to make use of the information presented here. Educators, librarians, bloggers, software developers, filmmakers and most of us who communicate digitally will all have the need, at some point, to use copyrighted work. Understanding what and why copyright law protects is crucial to understanding your rights when it comes to using work created by and copyrighted by others. Fair Use is your right to use copyrighted material without permission or payment--under certain carefully considered factors, best vetted through an attorney.
The authors begin by making their case against what they view as the tyranny of "long and strong" copyright legislation that heavily privileges the rights of copyright owners, whom they identify primarily as mass media corporations. This is in sharp contrast to the worldview of people who make "new cultural works"--often artists, remixers, appropriators, self-styled pirates--who understand the cultural landscape from which they draw to be a common field, ready for grazing, and the creation of new, zesty products redolent of the past, yet promising the future. Their perspective is often that copyright is "bunk." My guess is that many of these "creators" will be doing a fast about-face as soon as one of their productions starts to have an economic value in the marketplace, and it is indeed economics, as opposed to ethics or human rights, that has formed the body of copyright legislation that we must deal with today.
Significant moments in the history of copyright law are outlined in the book. The Copyright Act of 1976, for example, is cited as a crucial document in understanding the basis of copyright law; the Act states, "All expression that winds up in a fixed medium [and that means everything--your shopping list, the inter-office memo, your kids' homework] is copyrighted by default." Also significant is the development of digital technologies, which has made it easier than ever to make prodigious copies of just about everything, striking fear in the hearts of the big media companies and their trade organizations, who have been watching their business models change without figuring how to monetize their assets in different ways--a perfect storm for a lockdown on copyright. Their court of last resort has been to leverage their intellectual property ownership of these assets and scare people into believing that their ownership rights go beyond what the law says they actually are.
It is also technology that has brought the issue of copyright into the lives of millions of people. Aufderheide and Jaszi say we don't have a choice: "We are both consumers and creators every day, and we need to use our rights to draw on our own culture, as well as claim rights to our own productions." They go on to say that we need to "reclaim the conversation about copyright as something that belongs to all of us." This sounds like a call for a manifesto to me; indeed, the authors have been busily creating manifestos, calls to arms or, in their terminology, "codes of best practices." So far, there are nine such codes, including "Code of Best Practices in Fair Use for Media Literacy Education," "Code of Best Practices in Fair Use for Online Video," "Code of Best Practices in Fair Use for Open Course Ware" and six more listed in the appendix.
Understanding copyright is not easy. Evidence of that is the huge and growing community of legal practice dealing with the myriad cases that find their way into courtrooms across the country. We usually hear about the most absurd among them, and the authors have sprinkled such case histories throughout the book, under the rubric "You be the Judge," leaving the outcomes for you to guess and look up at the end of the book, or they direct you to centerforsocialmedia.org/fair-use.
I confess some ambivalence at giving Fair Use a platform in this review. I am a "gatekeeper"--a distributor and holder of copyright licenses for a large number of "works." Given the control upon which we depend in order to monetize the content both for the survival of our company and for the enrichment of our filmmakers who have entrusted us to protect that copyright, I am loath to promote the idea that it is okay "to use copyrighted material without permission or payment." Indeed, it's not; you can't simply apply Fair Use every time you want to use a clip. You need an attorney to scrutinize the usage and advise you yes or no. While the promulgation of the concept of Fair Use over the past several years has helped make the production of, say, history and essay documentaries much more cost effective, it's a two-way street: the gatekeepers lose potential licensing revenue--and so, eventually, do filmmakers.
Cynthia Close is executive director of Documentary Educational Resources.
To read the letters to the editor regarding this review, click here.