Taking control of fair use – (Peer-Reviewed Monday)


And… on a Monday even.  What are the odds?

This article (PDF) picks up on the post last week about Emily the Strange and Nate the Great.  In terms of creativity, transformation, fair use and — what this means for those of us in libraries, those of us who teach, or those of us in higher ed.

Aufderheide, P. (2007). How Documentary Filmmakers Overcame their Fear of Quoting and Learned to Employ Fair Use: a Tale of Scholarship in Action. International Journal of Communication [Online], 1 (1), 26-36

And it might not mean the same things for all of those groups, even given the overlap that must exist between them, because what this article is arguing is that groups like teachers (or even like teachers who teach specific things), or like librarians should take the time and spend the energy it takes to define for themselves what constitutes “Best Practices” in their field or community, when it comes to fair use.

Backing up – the authors claim that fair use is kind of the forgotten strategy of intellectual property, that the lines between fair and unfair use can be blurry, that there’s a lack of clarity about what it means and that people and institutions are nervous about asserting it.   By defining Best Practices, creating a statement that clears up some of the ambiguity surrounding fair use, a community can add clarity to the process and increase the likelihood that people within the community will assert their fair use rights.  Beyond that, the authors argue that a best practices statement also has legal value, that courts do consider the norms within a community when deciding whether or not a use is fair.

The case study example the authors use is documentary filmmakers.  This was a group that really needed clarity about fair use, but that wasn’t widely using fair use.  The authors started their project with by doing long interviews with documentarians and found that there was confusion about fair use, misunderstandings about the law, and a lot of fear out there about being sued:

Documentarians were avoiding a wide range of subjects including political and
social commentary, musical subjects and popular culture generally. They routinely altered the reality of
the localities where they captured images, and they also changed both sound and picture after the fact.

These documentarians also pointed out that they did not totally control what got used and what didn’t.  Even if they wanted to go the fair-use route, those who made it possible for them to broadcast or distribute their films had bought into the “permissions culture” and the only way to safely use copyrighted works.

Now, to me, this sounds familiar – there is a lot of acceptance of permissions culture in higher ed, I think.  And in libraries.  And while a lot of teachers I know may not necessarily think they should have to get permission for the things they use in the classroom, the gatekeepers above them (especially when we’re talking about using digital materials in the classrom) do.

So, after doing the interviews, the authors identified the different ways that documentarians use copyrighted information, and which of those uses the community members identified as “fair.”  They also asked “if someone who was not you was using your material in that way, would you still consider it fair.”  From this, they identified a set of best practices, things the documentary community thought constituted fair use of copyrighted materials:  Documentary Filmmakers Statement of Best Practices in Fair Use.

Then, they looked at the legal record.  They found that where challenges had been made, the defendents often won, for doing things that the community had considered fair.  Where the defendents lost, they had been doing things the community had rejected.  So the community had done a pretty good job defining its own practice.

The authors identified 3 main questions the courts had asked when deciding fair use cases — these questions dealt with:

  1. the transformative nature of the new work — if something new was created out of the copyrighted material/ significant value was added, then the use was more likely to be considered fair.  If the copyrighted material was simply being re-used for its intended purpose, then not so much.
  2. the good faith of the defendant.
  3. the best practices of the community – was the use “reasonable according in the general opinion of the field or discipline within which it was made?”

The best practices idea is also important because no single case will ever provide clarity on fair use – so long as the law depends on precedent and precedent is by definition situational, it can’t.

The authors conclude by arguing that there was an almost immediate, practical shift in how the community approached questions of fair use (and they built upon that argument further here).  All of a sudden, authors were asserting fair use rights, using the document to support them.  With further, active outreach, fair use became a part of the conversation in a way it had never been so before.

The implications of this for teaching and learning are probably pretty clear, as another area where best practices should be definable.  Indeed, the next project outlined on the website is on a topic not only of interest to instruction librarians as teachers, but specifically as information literacy teachers.  In 2006 the Berkman Center released a white paper about best practices for digital learning.  The Center for Social Media picked up the thread with a Best Practices document specific to Media Literacy education — specifically teaching students about media (not just using media to teach students about any topic):  The Code of Best Practices in Fair Use for Media Literacy Education.

Media literacy, defined here as “the capacity to access, analyze, evaluate, and communicate messages in a wide variety of forms.”  The overlap there with information literacy is obvious, and the document has a lot of relevance to information literacy teachers.  More than that, doesn’t it show what we could do, or should do, in our communities (higher ed and librarianship) to take control of this issue for ourselves?

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