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Pat Aufderheide Center for Social Media American University
FAIR USE AND COPYRIGHT:MAKING THE BEST USE OF BEST PRACTICES
THIS COMES FROM• The Fair Use Project
• Five years of work with Washington College of Law
• Funded by MacArthur, Rockefeller, and Ford Foundations
• Co-principal investigator: Prof. Peter Jaszi ([email protected])
OVERVIEW
• Copyright policy basics
• Imbalance in copyright policy
• Interpreting fair use
• Best practices codes
• Implications for VLA
THE PURPOSE OF
COPYRIGHT
ONE PURPOSE :
TO PROMOTE THE CREATION OF CULTURE
By:
• Rewarding creators with limited monopoly
• Encouraging new makers to use existing culture
WHY BALANCE?
• All culture created on existing culture (we used to know that)
• The First Amendment (no censorship)
BIGGEST BALANCING FEATURE:
FAIR USE legal, unauthorized use of
copyrighted material--under
some circumstances
FAIR USE legal, unauthorized use of
copyrighted material--under
some circumstances
THE RISE OF
TIGHT COPYRIGHT
HOW WE GOT IMBALANCE• Copyright term extension
• Default copyright
• Punishing penalties (statutory damages)
• DMCA
• Treaties
FORCES IMBALANCING THE LAW
• Post WWII media conglomeration (archives=assets)
• The Feds’ free-trade push
• Digitization + Internet
DARK DAYSOF FAIR USE
• In ’80s, “fourth factor” balloons in importance
•Law-and-economics
•Koons decision 1992
• “Noncommerciality” (Betamax) an economic analysis
TURNING ON THE LIGHT: JUDGE LEVAL
• 1990 Harvard L.R.article
• 1992 Texaco decision
• 1994 Campbell v. Acuff Rose
• And many many more, e.g. Bill Graham
FAIR USE MOVES TO THE CENTER
• Judges love balancing features
• Supreme Court hangs term extension on fair use
•Eldred
•Golan
FAIR USE:A Core First Amendment Right
INTERPRETING
FAIR USE
THE “FOUR FACTORS”
• Reason for the use
• Kind of work used
• Amount used
• Effect on the market
AND, IN THE LAST 15 YEARS…
• Transformation
• Amount related to transformative purpose
Judges focus on
JUDGES ASK:
• Did you transform the use?
• Did you use the appropriate amount to satisfy the transformative use?
PLUS…
Custom and practice of individual creative communities…
...especially when well-documented*
*thanx Michael Madison
FEAR…• Will I get it wrong?
• Will I get sued?
• Will my boss/general counsel client get angry?
RUNAWAY RISK ASSESSMENTFirst Amendment rights all have risk
Risk assessments routine
No info? Assess at high risk
BEST PRACTICES
FROM PERMISSIONS TO AGENCY
• The client makes the call
• The lawyer enables good decisions
COMMUNITIES INTERPRET FAIR USE:
• Documentary filmmakers
• Scholars
• Media literacy teachers
• Online video
• Dance collections
• OpenCourseWare
PROCESS
• Research current practices and problems
• Expose community to consequences of confusion
• Work with community’s organizations to build code
DOCUMENTARY
RESULTS
• TV programmers air films
• New kinds of films made
• All insurers of errors and omission accept fair use claims
• Every H’wood studio employs fair use openly
• Lawyers use the Statement to build and grow their practices
MEDIA LITERACY
TEACHERS
RESULTS
• New curriculum in several states
• School district import the code into standards
• National video competitions use the Code
• New media literacy publications
OPEN COURSEWARE
RESULTS
• University GCs supportive
• MIT: 31 new courses in one year
•Previously rejected for OCW
NEW!
• Association of Research Libraries’ Code of Best Practices in Fair Use for Academic and Research Libraries
• Visual Resources Association’s Statement on the Fair Use of Images for Teaching, Research and Study
WHAT HASN’THAPPENED• No loss to lawyers’
business (rather, increase)
• No legal challenges to Codes
• No lawsuits • *(two injunctions
summarily dismissed)
FAIR USE:Practice Makes Practice (not only judges)
MORE INFO, CHEAP
MORE INFO, FREE
Centerforsocialmedia.org/fair-use
Codes!FAQs!Videos!
Find this on Slideshare. Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.
Find this on Slideshare. Please feel free to share thispresentation in its entirety.For excerpting, kindly employthe principles of fair use.
THANK YOU!
Peter JasziVLAMacArthur, Rockefeller, Ford, Mellon and McCormick Foundations
CONTACT INFO
Pat Aufderheide Center for Social MediaSchool of Communication American University Washington, DC [email protected]