Fair Use and the Future of the Commons

Thanks to Erin and Steve Anderson!!!

With fear, uncertainty and misinformation dominating the discourse of copyright and intellectual property, fair use has become one of the most vexing issues in today's academic landscape. What can we do to demystify its mysteries and debunk its supposed dangers? Critical Commons advises that we can get informed, get connected and get active. The aim of this forum is to open up a space on the HASTAC network to share experiences, knowledge and questions regarding fair use. For clarity's sake, we may begin by asking what exactly fair use is (an admirable agenda that is not so simple to accomplish). The Electronic Frontier Foundation provides this answer:

In essence, fair use is a limitation on the exclusive rights of copyright holders. The Copyright Act gives copyright holders the exclusive right to reproduce works for a limited time period. Fair use is a limitation on this right. A use which is considered "fair" does not infringe copyright, even if it involves one of the exclusive rights of copyright holders. Fair use allows consumers to make a copy of part or all of a copyrighted work, even where the copyright holder has not given permission or objects to your use of the work.

Since 1841, fair use has been considered "the guarantee of breathing space for new expression within the confines of Copyright law." And yet, increasingly online media makers are being condemned, censured and threatened by a culture of copyright and intellectual property that ignores this "space for new expression." These owners prefer the issuance of takedown notices and cease and desist letters over the nuanced consideration of fair use concerns. What use can fair use serve in this harsh climate of chilling effects? Critical Commons supplies us with some reasons to be hopeful; ten, to be precise. From a presentation Steve Anderson (co-founder of Critical Commons) delivered recently -

 

Ten Reasons to be hopeful about Fair Use:

  10. The more you know, the less scared you are

 

    Critical Commons aims to shift the discourse about fair use from being dominated by lawyers and technologists to include the voices of ordinary users, consumers and makers of media. If we are going to practice responsible, ethically defensible media-enhanced scholarship, we need to educate ourselves about the rights and responsibilities of fair use, and participate actively in the expansion and reform of fair use.

 

9. The Digital Millennium Copyright Act (DMCA) safe harbor

 

    Although the DMCA, signed into law in 1996, increased penalties for copyright violations and criminalized any technology that might be used to defeat copyright protections, the safe harbor clause protects service providers from being prosecuted for infringement that takes place over their networks, thus fueling remix culture, DIY and user-generated media.

 

8. Sharing is good business

 

    The at the Internet Archive is one success story - as soon as Rick Prelinger started giving the materials in his archive away for free, the commercial part of his business began to boom. Many economic models are emerging that take advantage of sharing rather than fighting against it.

 

7. Digital Rights Management (DRM) doesn't work

 

    It's just silly, and consumers understand that it's silly. Organizations such as take the position that, if the media and technology industries are going to treat us all like criminals, then we'd better start acting like it.

 

6. Aggressive tactics of MPAA and RIAA radicalizing consumers

 

    People are sick of being called pirates and watching infantilizing ads with every DVD and movie they watch. The recently passed legislation creating the office of Copyright Czar in the White House associates copyright piracy with .

 

5. Mainstreaming of participatory culture and peer networks

 

    As represented by the success of Wikipedia and 's The Long Tail.

 

4. Vibrancy of remix culture

 

    Fan-vidding, anime music videos, music sampling, remix, cut-up, and mashup videos are all characteristic of today's remix culture. A whole generation is growing up with digital tools and networks that are integral to their identity and self-expression.

 

3. Open source movements

 

    The extraordinary efficiency and economic success of non-proprietary technology development (e.g., Apache, Linux, Mozilla, etc.), suggest analogous models in other fields, including open educational resources and .

 

2. Institutional alternatives to copyright

 

    Organizations such as the Center for Social Media, Creative Commons, Electronic Frontier Foundation, the Internet Archive, Participatory Culture Foundation, Open Video Alliance, Organization for Transformative Works and many others are providing viable alternatives to conventional copyright and intellectual property regimes.

 

1. It sucks

 

    Although fair use is our best and only protection under today's copyright law, it is badly in need of a more radical transformation to support widespread cultural practices and legitimate academic needs. The very fact that fair use is insufficient necessitates the creation of alternative strategies and cultural .

 

 

Steve's Slideshare Presentation -

Fair Use & Critical Commons


View SlideShare presentation or Upload your own. (tags: fairuse copyright)


I hope that this topic, and these reasons to be hopeful, stir some thoughts for the HASTAC community. As this forum will be coinciding with a real-life event taking place on USC's campus on Monday, October 27th (Free to the public! If you are in Southern California, please join us!), I will be blogging my account. But please contribute your own thoughts, visit us in Second Life on Monday and be a part of the events as they stream into a viewing space on the IML island!   

 

28 comments

Given my own background in literary criticism, I'm curious about the rhetorical association that different politicians and writers have drawn between copyright "piracy" and political "terrorism." More generally, commentators such as Thomas Friedman and Richard Clarke have linked the internet to terrorism, based on the fact that terrorists used public library terminals before the 9/11 attacks. I'm not sure whether this type of posture represents a profound misunderstanding of the social applications of technology, a generalized technophobia (or, more specifically, a fear of networks), or a more banal instance of opportunist politics.

Certainly, similar tools are used in the battles against political dissidents and copyright violators. I think it's significant that, in both cases, the forms targeted by governments are networks: both participatory networks that share information and hostile networks that are hell-bent on widespread destruction. Why is that? I could offer some speculations, but I think Siva Vaidhyanathan offers a persuasive thesis in his book The Anarchist in the Library (2004). He writes, ?The rhetorical value of alleging a 'network' at the heart of a threat to security or identity is clear: It's impossible to tell when a war against a network is over because it can't be seen. A network can be dispersed, distributed, encrypted, and ubiquitous.?

In the case of information, text, and media sharing, the focus on shutting down dangerous "networks," in particular, is problematic for at least 3 reasons. First, it disrupts emergent communities and curtails the development of new ideas. Second, it allows the senseless blurring of "security" strategies used against terrorists and copyright violators. Clearly, these are not comparable "crimes." Tactics intended to be used in a "state of emergency" clearly shouldn't be used in cases of information sharing (and, arguably, a great deal of alleged counter-terrorist work as well). Third, as Vaidhyanathan suggests, the problem with a legal war against networks is that it will never end. Distributed and peer-to-peer networks cannot be destroyed completely. People will continue sharing texts, music, videos, programs, and other media. So, given its announced goals, aggressive copyright enforcement and the war on information sharing is destined to fail. According to the recent legislation, the ominous-sounding "Copyright Czar" or "Intellectual Property Enforcement Coordinator" (IPEC) doesn't even have the authority to direct law enforcement agencies in order to support new investigations.

In conclusion, these government measures are unproductive or impotent, at best, and truly destructive, at worst. In the end, antiquated bureaucratic measures are being used to combat a new series of network activities. And, given the countless benefits of information sharing, introduced so well by Veronica, this is not a war worth fighting.

Patrick Jagoda (Duke University)

112

You have invited people to share their experiences and questions, and I would selfishly like to do the latter in an attempt to solve some copyright/fair use issues I'm personally trying to sort through as I finalize my dissertation. These may be very simple questions, but if nothing else, they're reflective of how confusing these questions can seem to the average Joe (neither six-pack nor plumber), and how successful our universities have been in scaring us about the dangers of abusing "fair use."

 

My work is focused on the early twentieth century. I can see--from http://www.unc.edu/~unclng/public-d.htm for example--that anything published before 1923 is considered "in the public domain." In these days of digital reproduction, it is so easy to find images online and cut and paste, or "Save As," and there you have it. But if the image itself was created before 1923, does it matter what source I take it from? i.e., if the image has been digitally reproduced - by Proquest, by Google Books, by an online company looking to sell a print of an image - are there any added copyright issues involved by this reproduction, or am I free just to cut and paste the image into my dissertation? (Or should I approach this question from the angle: would anyone sue me if I did this?)

 

Similarly, if I have come across an image (potentially still in copyright) that is reproduced in a book (definitely still in copyright), do I need to track down the image in its original source and investigate that copyright? If I wanted to scan the image from the more recent book that is easily at hand, how would that impact what "copyright" information I would need to acquire?
And what are the best sources for people in situations like mine to turn to? Where should we look to hunt up answers to these questions ourselves?

Thanks for any input!

119

The ten points above are certainly a great place to begin. I would also suggest that within this narrative that we don't fall back into a binary ourselves. That is, the DRM folks led by the music industry have given us the binary -- pirate or purchaser--those are our only choices in their framework. So of course there has been push-back and rightly so against the overzealous expansion and use of copyright to give these huge companies a bigger profit margin. The danger is that the narrative becomes from the "other" side: free culture vs. permission culture where any type of controls or uses of access parameters and protocols become suspect and assumed to be non-free or "locking down" culture. I say this from the point of view of someone working with Indigenous people to use digital technologies to aid in the creation of archives and curation processes that are informed by Indigenous knowledge systems. Specifically in museum and archive collections, where I think we can all agree that much (not all) of the material was not collected in anything we might consider today to be with informed consent, then there is also a responsibility by public institutions to at least engage with Indigenous communities about the proper protocols for and methods by which their materials should be curated and distributed. This can lead to more responsible remix of Indigenous collections and an expansion of knowledge between peoples about these rich collections. Fair use is one way to frame these debates, but it certainly isn't the only way.
Kim Christen

127

You may already be familiar with Bridgeman Art Library v. Corel Corp., but if not, it's a place to start looking for an answer to your first question. As I understand it, facsimile reproductions of public domain images are not copyrightable, but you may have contractual obligations (with ProQuest, for example) that restrict your right to republish them.

120

Since we're on the topic of copyright law and the rhetoric of terrorism, I'm curious about other people's reactions to the Content Liberation Front, an organization dedicated to "liberating" content through acts of "civil disobedience." The organization's homepage describes the process, which they call "contract stripping":

There are a wide variety of databases whose content is public domain or uncopyrightable (in the US, databases of straight facts can't be copyrighted) but whose publishers try to prevent people from distributing them by forcing anyone who buys them to sign contracts.

We, however, are not bound by such contracts. Any such CDs, DVDs, or hard drives sent to [address] will be copied, placed online for everyone, and any remaining evidence destroyed.

Despite the somewhat silly and inflammatory name, the person responsible for the CLF isn't just some disgruntled grad student?his name is Aaron Swartz, and he's a kind of celebrity in a certain corner of the development/tech world. He's the creator of web.py, one of the co-authors of the RSS 1.0 spec, one of the founders of reddit, and the current tech lead for the Open Library Project.

Swartz's credentials don't justify the project, of course, and the methods he advocates are almost certainly illegal, clearly dangerous, and probably unethical by the standards of most academics. I personally agree with Peter Suber, who argues that Swartz's related Guerilla Open Access Manifesto is counterproductive:

I don't oppose the illegal tactics because I think current copyright law is just. On the contrary, I think it is grotesquely unbalanced and unjust. Nor do I oppose civil disobedience. But I don't accept that copyright infringement is civil disobedience and, more importantly, I don't accept that advancing OA through deliberate violations of copyright law would do more good than harm.

That said, I can't help finding something charming in Swartz's swashbuckling rhetoric?as far as I'm concerned he's on the right side, and I think we need leaders with his kind of talent and charisma.

Would anyone actually consider participating (either as a contributor or consumer) in contract stripping (hypothetically, of course)?

120

Thank you Veronica for kicking off such an important discussion, and I will happily see you at the IRL Critical Commons event.
While it is good to approach the difficult questions enabled by the digital nature of emergent media and the distribution systems enabled by a networked society, I am most recently concerned with the more prosaic questions of how copyright and fair use come into play in more traditional academic questions.

As someone who is finishing up my time in grad school, I have the pleasure and the pain right now of worrying about current syllabi, sample syllabi for job application dossiers, and prospective syllabi for upcoming teaching opportunities. As I am currently managing multiple syllabi across adjunct positions at three universities, I am wading through the thicket of each school's policies regarding fair use of academic writing and the related policies for the digital distribution of course reading material.

In terms of putting together an actionable syllabus for any of my classes, I am in the position of weighing my ideal course readings, my expectation for what students will actually be able to process, the affordability to students of assigning textbooks/printed course readers/electronic article distribution, each university's policies regarding digital distribution, and my own willingness to shortcut the system by placing PDFs on less regulated servers. As I have for years as a teacher and teaching assistant, I find myself half-obeying the university regulations and half-disobeying them in order to provide my students with better course materials at a manageable cost.

I know that I am not alone in this, as most everyone reading this post right now has dealt with these issues at some point. Could I just argue that I am "remixing" a series of articles from anthologies to create a context-sensitive anthology of my own? Should I only post PDFs on unregulated servers in those instances that I have actually contacted the authors of the piece of writing? Would that even matter, given that the copyright for the material is likely held by the publisher anyway? Should I short-circuit that problem by just getting the author to send me their own PDF of a piece of writing? Should we collectively be working to overhaul the use of current copyright policies by academic presses and journals in favor of a copyleft approach? It wouldn't be much of a stretch to argue that "sharing is good business" for authors and that an open-source model should be something academics aspire to.

In the short term we still have to make decisions about whether to assign an expensive textbook plus a few fair use articles simply because it takes us off the hook for copyright infringement, or whether we want to stretch the rules a bit to provide the relevant and meaningful assignments that don't qualify for fair use or would cost students a bundle. I have tried to strike a balance in my recent classes, but that also means that students have to find course materials in multiple places, which, not surprisingly, leads to lots of work for me and compliance issues for students.

It is easy enough these days to scratch together PDFs of most any reading, but almost as easy to imagine a teaching environment in which the academic commons did not necessitate dealing with bad scans, multiple servers for different files, reading half-chapters via google books until the session limit is reached, and putting ourselves in the position of deciding between our own legal precariousness and our student's best interests. Obviously all of these questions bump up against long-term questions regarding the viability of academic publishers and the role of writing contracts in an academic's revenue stream, but I thought they might provide a nice counterpoint to our discussion here.

Daniel

109

Hello!
Thank you, Veronica, for introducing such an important and interesting conversation.
Like Daniel, I spend much of my time trying to figure out what I can and cannot ethically photocopy/post online for my classes. I wonder if anyone has read this article about the lawsuit filed against professors at Georgia State University who were scanning parts of work and posting them online: http://www.law.com/jsp/article.jsp?id=1208435391631.
I'll quote this part: "The publishers allege that as of February, the GSU library's electronic course reserves system listed more than 6,700 works available for some 600 courses. It's likely that most of this "extensive copying and distribution" was performed without authorization, the complaint alleges."
The article highlights the difficult decisions instructors must make: Many of us try to respond to the escalating cost of textbooks by photocopying/posting pieces of works without flagrantly violating copyright laws. I find myself feeling at once ignorant about the nuances of copyright laws for nonprofit organizations and also indignant of those laws as I try to ensure that all of my students can afford the materials for the class. At the same time, as an editor of textbook, I also appreciate receiving the occasional (paltry) royalty check.
I wonder how many of us are actively part of these complex conversations at our institutions? Have there been spaces/communities created to host such conversations--and if so, are you aware of them? I don't see evidence of them happening at my institution (University of Michigan) though that's certainly not to say they aren't happening.
I don't think I've offered to solve your anything--certainly not your interesting questions, Erin, about including works in your dissertation--but I am interested in knowing if and how others navigate these complicated issues within their own institutions.
-Staci

Staci L. Shultz

PhDCandidate, Joint Program in English & Education

Graduate Student Instructor, English Department Writing Program

Graduate Teaching Consultant, Center for Research on Learning & Teaching

127

Kim, thank you for this comment. I'm very grateful for this intervention into the conversation. In considering the binaries that characterize the discourse surrounding intellectual property rights, I've found Eva Hummings Wirten's call for self-reflexivity to be particularly thought-provoking. Her essay "Out of Sight and Out of Mind: On the cultural hegemony of intellectual property (critique)" raises important questions about the binaries that are common in intellectual property debates -

It is almost as if we need the perfect oppositions of good v. bad in order to make an expedient case against the increasing encroachment of greedy intellectual property rights holders. This is understandable, perhaps even necessary. But I have a problem with the fact that such a matrix of opposites makes it so easy, too easy in fact, to determine who are the bad guys, and thus quite logically, who are the good ones.

At the end of the essay, Wirten stresses that intellectual property / the public doman are global issues; however her work seems to be more focused on their construction and 'place' in Anglo-American copyright (by which she means in the contexts of the United States, the U.K., Canada and Australia). I hope that we can engage the topic of global copyright a bit more in this discussion. While this forum, on one level, exists to discuss pragmatic issues concerning education about fair use; I also hope that it will take up Wirten's challenge of taking a self-critical, self-reflexive approach. What does this discussion itself say about the current state (and histories) of our own 'knowbiz' economies and industries? Thanks again for pointing to some significant questions.   

117

One of the goals of the Fair Use event next week at USC is precisely to create an opportunity for non-specialists (i.e., people who are neither lawyers nor IT professionals, but whose work is directly impacted by access to copyrighted work) to contribute to the debates around fair use and I'm pleased to see this happening in the HASTAC forum. Some excellent issues have already been raised, several of which were very much a part of our thinking when formulating the Critical Commons project.

From my perspective, every question related to copyright or fair use represents an opportunity to reflect on the process by which we negotiate our own position in relation to intellectual property. Simply put: there are no easy answers when it comes to fair use. This is bad because those erring on the side of caution may self-censor to the detriment of their own scholarship or teaching. It's good because we have an opportunity to assert our own ethical position and argue for its validity. This is the power of the Best Practice guides that have been coming out of the Center for Social Media. Best Practices, of course, do not have the force of law, but the more they are used and endorsed (the Electronic Frontier Foundation, for example, has offered to back up the Documentary Filmmakers' guide in court if necessary), the more likely they are to have impact both on people's ability to use the media they need and on long-term legislative reform.

The question of electronic civil disobedience is a difficult one for me. Like Peter Suber, Lessig is unequivocal on this: don't do it! Every time laws are broken, it lends credence to the MPAA/RIAA's blanket accusations of piracy. At the same time, history teaches us that bad laws are sometimes changed precisely by taking the fight to every available front. I guess I am less interested in civil disobedience that simply points out the absurdity and contradictions (which are many) of the existing copyright regime, but I think it's important to continue to take an informed, assertive, expansive approach to fair use and acknowledge that, on occasion, this will mean taking risks and opening issues for debate using whatever means are available.

So what is to be done when we are making our own ethical decisions, striving to respect the rights of creators or lessen the economic burden we are placing on students? My answer is to recognize that we are not alone in these decisions and to mobilize the networks and communities we are already a part of. Best Practices are most forceful if produced by a broad range of voices. If you have an ethical principle you are willing to stand by, find a way to document it and make it available to your community of practice - supporting this type of collective knowledge sharing is one of the things Critical Commons is designed to facilitate when it launches in spring 2008.

-Steve

114

This link is very useful and helps an average person to make an informed decision about what is allowable. Case law is not always so clear-cut, however, and it can become very burdensome trying to digest the intricacies and contradictions of judicial statements from copyright litigation. For those with the patience and interest, a useful compendium of fair use-related cases is published by the Fair Use Network. You may also want to look into the guiding principles of fair use (link below). For me, the factors that resonate most strongly are whether your use of a copyrighted work does any harm to its owner or adversely impacts the marketability of the original work. Another factor is the nature of your re-use - are you trying to make money from your reproduction or are you producing a work of scholarship that enriches your field of study? A good rule of thumb is simply to use no more of a copyrighted work than you need to make your point. The fair use statute also recognizes transformation of an original work as a factor - are you creating a different context for the work or changing its meaning or understanding? Presumably, most scholarly uses would answer 'yes' to this. Case law has also recognized "illustration" as a viable category for fair use, but this is not one that I support in my teaching. I don't allow students to use images, sounds or video simply to illustrate or decorate an argument when working in multimedia - this is especially true for music - my personal stance is that a scholarly use should be critical or analytical and not merely illustrative. For an excellent summary of the "four factors" in fair use, visit the Stanford Fair Use Project website and then make up your own mind!

136

Thanks to everyone who has contributed to the discussion so far! I very much appreciate the great posts being put up; I also value the time taken to read, lurk and contemplate. I look forward to the next week of this conversation, which has already brought up significant issues about intellectual property and copyright law that I am grateful to be thinking about.

In the interest of bringing a HASTAC presence to Fair Use Day at USC - I have put together a video (with the help of IML tech staff!) that shows where the webcasts will be streamed in Second Life. You can find the SLURL in the Sprout viewer above and also here. Fair Use Day starts Monday 10/27 at 9:00am PST with a keynote presentation from Peter Jaszi, Professor of Law at American University. Here are some schedule details:

FAIR USE AND THE FUTURE OF THE COMMONS

9:00 - 10:00am | Keynote Presentation
Peter Jaszi, Professor of Law, American University
10:00 - 11:30am | Roundtable Discussion
Moderator: Jennifer Urban, Intellectual Property and Technology Law Clinic, USC
Participants: Phillip J. Ethington, Center for Transformative Scholarship, USC | Peter Starr, University of Southern California | Eric Faden, Bucknell University | Virginia Kuhn, Institute for Multimedia Literacy, USC
11:45 - 12:45pm | Panel Discussion
Moderator: Holly Willis, Institute for Multimedia Literacy, USC
Participants: Francesca Coppa, Organization for Transformative Works, Muhlenberg College | Eric Steuer, Creative Commons | Steve Anderson, Critical Commons, USC
1:30 - 3:00pm | Fair Use Showcase
Marsha Kinder, Director of Labyrinth Project + Eric Faden, Bucknell University

I look forward to seeing you there!

 

116

I'm curious about this issue. I was under the impression that fair use never has to be invoked to justify the reproduction of works in the public domain, and that the Bridgeman case therefore means that any photographic reproduction of a PD painting, text, map, etc. (although not sculpture) can be used freely for any purpose (at least in the U.S.), whether or not that purpose fits the fair use criteria.

If this is correct, it means that I could download Girodet's paintings from Ossian from the Art Institute of Chicago's website, for example, and republish them on my own site, without permission and without appealing to fair use (and despite the AIC's rather threatening copyright notice).

As I understand it, the only way a publisher can restrict my right to republish PD images is through some kind of contract. I couldn't republish a facsimile text that I downloaded from Gale's ECCO through my university library's site, since my university has an agreement with Gale that prohibits that kind of reuse. But isn't that restriction entirely separate from copyright? Doesn't Bridgeman mean that Gale simply cannot claim copyright in photographic reproductions of eighteenth-century texts?

129

Thanks for a great forum, Veronica. I'm learning a lot. And I especially like the thread of the discussion based on binaries. When one is on the consuming end--needing materials for a course or to cite in one's work--it is easy to think in terms of what is best, cheapest, free, available. When one is on the producing end, as a writer (especially a freelance writer or an adjunct who does not have another income), the matter is trickier. When one is a university press publisher, trickier still---and that, in the end, has an influence on all of us. There is no such thing as a university press that "makes money." They are all subsidized one way or another because the economy of our academic market does not support publishing. So some publishers like Harvard U P (big surprise here) have a very large endowment and "breaking even" is not overspending that endowment. Others, such as Johns Hopkins UP, have a market on certain medical textbook publishing and that supports all the kinds of publishing that the rest of us do. U of Chicago P has a very large warehouse operation and a journals operation, both of which support book publishing. And then many other presses rely on subsidies from their universities. The point is, it is NOT a for-profit business and employees at presses basically have to operate as non-profit workers within non-profit institutions (meaning they tend to be the least well compensated and most hard working). So the analogy between the record business and the academic publishing business doesn't really work. That said, I very much admire all the different ways publishers are trying to deal with reproduction rites for classes that also work around the binaries. Why should Hammermill paper make money from our scholarship (as when we have our students downloading articles for free)? Or Kinkos? At the same time, it is ridiculous if one cannot even quote or cite from a piece? There are so many grey areas to be negotiated. But the larger point is that, to set up university presses as if they are the antagonist, won't really deal with the issue of how we can all make a system that is a non-profit and even money-losing system still work so that there are places where we can publish and read not-profitable specialized scholarship that is the lifeblood of our profession and our future as professionals? All studies show that electronic publishing does NOT save money . . . it costs lots more. Gutenberg-E, for example, proved unsustainable as a freestanding electronic form of electronic publishing. It is a transitional time and we have to consider all aspects of the process as we go through this transition.
Thanks everyone for your participation , your experiences, your thoughts on this issue that is of importance to us all!

125

I think you're right! My response about the fair use principles was prompted by the latter part of Erin's question, when she asks about works that may still be in copyright. One of the explicit goals of Critical Commons is to empower individuals to make these decisions for themselves, taking into account case law as part of the picture, but also responding to the shared needs and ethical priorities of a community. The fact that we even worry about reproducing images that are in the public domain means that the "permission culture" Lessig identifies as one of the great threats to our culture and creativity is alive and well! 

130

On the topic of the inffectual nature of binaries in this complex situation, I'd like to push more on the contradictions/ conflicts that academic publishing poses to intellectual property, brought up here by Cathy. I've been ruminating on these issues for the past few days and I don't feel any closer to an easy answer, but I'm starting to understand how that might be the point. It's a complicated situation with some complicated questions. This discussion forum has definitely helped me to grasp that, and so has reading through Corynne McSherry's 2001 book Who Owns Academic Work?: Battling for Control of Intellectual Property. The 'property stories' McSherry shares here are mostly from Science and Technology Studies (STS) - but the questions that she asks are more than relevant:

What decisions go into turning academic intellectual products into legal property, and what is the history of that process in university settings? What are the conditions that make it possible for the fruits of academic research, which are often understood by their producers as well as those who fund that production as fundamentally 'public,' to be treated as private property? What contests for meaning arise when academics position themselves as knowledge owners....

There are definitely a lot of grey areas. These tensions are plainly illustrated in the case that Stacy posted about early on. In that article (for those that didn't make the jump to the article) an editorial director at Cambridge Univ Press, accusing Georgia State University of 'copying' too much, bemoans: "We ... filed this suit in sorrow, not anger...We're part of the university world, and in a sense we're suing family here." And Cambridge's lead attorney on the case says "the publishers are suing not for punishment or recompense, but to establish good policies going forward." Yet, by resorting to law recourse, the Press seems to have fulfilled GSU's worst case scenario, resulting in resentment. The GSU professor is quoted at the end as saying: "My experience with the university librarians has been a ruthless...investigation into how the law reads. That's why the
suit strikes me as grasping. Can they sue me for saying that?"

A set of oppositions here would seem to be family/ market. The objective of publishing and sharing knowledge makes us 'family' and yet viewing that knowledge as property or commodity shows a 'market.' I'll be honest, I'm not entirely sure where I'm going with this, but there are certainly significant issues at stake in these strong stances: disappointment and regret for the publisher and indignation for the professors and university. Perhaps, it's a lesson on how important (as McSherry puts it) "an ecological approach [that] investigates the production and management of meaning through collective action" can be to our academic futures - hopefully cognizant and wary of binaries.    

126

The day-long event dedicated to the discussion of all and any issues fair use-related has come and gone. It was an eye-opening day for many, and lots of the issues we've been discussing here were brought up there. I'm going to attempt to summarize my own thoughts on the day and raise some questions (hopefully now more focused than those that began our conversation) to sustain us through this forum (a second wind coming?). I will present these in fragments to save us all the scare of a mile-long post; bad blog etiquette, maybe. However, already in the spirit of verbosity, I think it's worthwhile to begin my account with some historical and legal details here, as they ground the conversations that went on throughout the day Monday and also ground our conversations here in this forum. Before 1976, fair use existed in the U.S. only as common law. In 1976, fair use was incorporated into copyright law in Section 107 of the Copyright Act.

In this section it specifies:
"...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work." 


Just thought it would be nice to have that explicitly included in our forum. This definition leads into the keynote address from Peter Jaszi, which began the event. Jaszi began his talk by revealing that 'we live in a golden age of fair use.' Fair use has been the safety valve that reduces the pressure of copyright law, but that is changing. The landscape has changed and fair use is becoming really tough to use and difficult to employ (something we've been noticing!). And yet in recognition of these paradoxes, a fair use renaissance has emerged. An answer to increased assertiveness of copyright law and confusion is characterized by a shift towards transformativeness as a key quality to curbing the threat that copyright could pose to creativity. Judging if a work is "transformative" relates to the first factor in deciding if a work is fair use or not: is it derivative, or is it transformative? If the work is 'transformative' then the fourth factor, its effect on the copyrighted work's marketability, may not matter (e.g. 2 Live Crew's parody of "Oh, Pretty Woman"). 

The bulk of the talk, however, centered on the importance of communities establishing and defining their best practices - doing this by identifying recurrent situations, articulating what is normative and what are the limitations of fair use for their field. In establishing this statement, the community gains a pedagogical tool and also means to communicate with 'gatekeepers,' which are those various entities that enable the work of a creative community to be seen and/ or heard. Having outlined a statement of best practices for documentary filmmakers in 2005, the Center for Social Media will soon be releasing the Code of Best Practices for Media Literacy (early November). Especially intrigued by this upcoming report, I found that an inquiry into fair use as it is interpreted in K-12 media literacy was previously reviewed in a Center for Social Media report, written in collaboration with the Media Education Lab at Temple University, called The Cost of Copyright Confusion for Media Literacy.

In his discussion of education and fair use, Jaszi mentioned the work being done by Lewis Hyde at the Berkman Center for Internet & Society at Harvard University. The projects coming out of Berkman on this topic are especially relevant to our conversation, including a white paper Hyde co-wrote called Freedom to Teach: an Educational Fair Use Project and his more officially published 2004 A Pattern-Oriented Approach to Fair Use. So, some questions: Who should be included in this dialogue? Everyone? Will there be enough common ground between disciplines for the concerns about fair use to overlap in productive ways? Won't Science and Technology Studies approach this topic in a different way from the humanities (specifically when it comes to 'property stories' - meaning the significance of being an owner of one's intellectual property)? Might this model, so successful for documentary filmmakers, be successful for academics? Are these the wrong questions to be asking? From your perspective, what would be the ideal outcome? the ideal fair use situation?  

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Thanks Veronica, I've learned a lot from this discussion!

Steve's comments about self-censorship got me thinking about how, in the classroom, the drawbacks of this kind of cautiousness are not just a matter of creative limitation. In my own experience, self-censorship on course websites, seems to undermine a key opportunity for students to connect with the outside world. While fair use clauses tend to cover a great deal of media use in the classroom, this freedom becomes complicated when the classroom moves beyond "meat space" into online venues. But why should we accept this distinction as natural? While educators are increasingly incorporating social media into the classroom and shaping curriculum around the personal investments of students, the parameters of educational fair use seem to be working against these objectives by limiting the online classroom as a site of knowledge production.

In a class I am currently TA-ing, students post online essays that analyze pop music recordings from the past century. The specific music tracks themselves can be listened to on the course website, but only if a visitor knows the class password. This means that anyone approaching the student writings from outside the course would not be able to participate in?or even simply follow?the student discussions unless they had access to their own copies of the musical numbers. Those outside the classroom are effectively positioned as consumers while those inside the classroom are positioned as knowledge producers. The educational clause of fair use, then, seems to naturalize this segregation between sites of education and sites of consumption.

Why must copyrighted media be cloistered in the literal space of a classroom? Shouldn't any use of media that qualifies as knowledge production be similarly exempt? As Michael Wesch argues information is not an object to be catalogued but rather as a conduit to meaningful relationships. This kind of meaning-making cannot exist in a vacuum. When students interpret, critique, reframe, remix, challenge, and filter copyrighted media, the knowledge they produce should have the potential to resonate with a much larger audience?thus positioning the student as an expert with a larger stake in the claims they make public.

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Hi, Daniel! I must admit, I'm learning a lot of this as I'm moving along. I know you're raising some broader issues in this post, but I thought I'd send along this information I found on academic coursepacks from Stanford's Copyright & Fair Use website. It explains the recent history of cases involving photocopying - the big one being Basic Books Inc. v. Kinko's Graphics Corp from 1991. Also, I thought this would be a good space to bring up a discussion about open courseware. Has anyone much experience with the extensive MIT OpenCourseWare materials? Or the Open Educational Resources Commons?

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Project URL:
www.law.duke.edu/cspd/comics/
Description:
Bound By Law - Comic Book Cover

 

Duke Law School's Center for the Study of the Public Domain has just released "BOUND BY LAW?" - a comic book on copyright and creativity -- specifically, documentary film. It has been published under a Creative Commons License (http://creativecommons.org/). The comic, by Keith Aoki, James Boyle and Jennifer Jenkins explores the benefits of copyright in a digital age, but also the threats to cultural history posed by a ?permissions culture,? and the erosion of ?fair use? and the public domain.
A well-known graphic artist, Keith Aoki, has worked with a team of intellectual property lawyers to present the complexities of fair use law in this novel and memorable way, as a service to documentary film makers and other visual/media artists as well as to students of changing IP laws.

 

"Will a spiky-haired, camera-toting super-heroine... restore decency and common sense to the world of creative endeavor?... Bound By Law exercises the fair-use doctrine in a romp through popular culture." - Paul Bonner, The Herald-Sun
"Bound By Law stars Akiko, a curvaceous, muscular filmmaker (think Tomb Raider's Lara Croft with spiky hair) planning to shoot a documentary about a day in the life of New York City...[It] translates law into plain English and abstract ideas into 'visual metaphors.' So the comic's heroine, Akiko, brandishes a laser gun as she fends off a cyclopean 'Rights Monster' - all the while learning copyright law basics, including the line between fair use and copyright infringement." - Brandt Goldstein, The Wall Street Journal online
"Bound By Law riffs expertly on classic comic styles, from the Crypt Keeper to Mad Magazine, superheros to Understanding Comics, and lays out a sparkling, witty, moving and informative story about how the eroded public domain has made documentary filmmaking into a minefield." - Cory Doctorow, BoingBoing.net

 

Description:
Bound By Law - Comic Book Cover
Duke Law School's Center for the Study of the Public Domain has just released "BOUND BY LAW?" - a comic book on copyright and creativity -- specifically, documentary film. It has been published under a Creative Commons License (http://creativecommons.org/). The comic, by Keith Aoki, James Boyle and Jennifer Jenkins explores the benefits of copyright in a digital age, but also the threats to cultural history posed by a ?permissions culture,? and the erosion of ?fair use? and the public domain.
A well-known graphic artist, Keith Aoki, has worked with a team of intellectual property lawyers to present the complexities of fair use law in this novel and memorable way, as a service to documentary film makers and other visual/media artists as well as to students of changing IP laws.
"Will a spiky-haired, camera-toting super-heroine... restore decency and common sense to the world of creative endeavor?... Bound By Law exercises the fair-use doctrine in a romp through popular culture." - Paul Bonner, The Herald-Sun
"Bound By Law stars Akiko, a curvaceous, muscular filmmaker (think Tomb Raider's Lara Croft with spiky hair) planning to shoot a documentary about a day in the life of New York City...[It] translates law into plain English and abstract ideas into 'visual metaphors.' So the comic's heroine, Akiko, brandishes a laser gun as she fends off a cyclopean 'Rights Monster' - all the while learning copyright law basics, including the line between fair use and copyright infringement." - Brandt Goldstein, The Wall Street Journal online
"Bound By Law riffs expertly on classic comic styles, from the Crypt Keeper to Mad Magazine, superheros to Understanding Comics, and lays out a sparkling, witty, moving and informative story about how the eroded public domain has made documentary filmmaking into a minefield." - Cory Doctorow, BoingBoing.net

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Thanks for posting more information here, Cathy! I realize that I should have put more info in my actual post with an image from the project. (The image, at least, is a link to obtaining the comic book.) I must say that after reading all these different interpretations and uses of fair use - this comic book is such a delight to read. When I first began reading about copyright law, I could not find an entry point that made a whole lot of sense to me - this was one of the texts that helped bridge my own conceptual gap between legal language and everyday life & practice.

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Veronica,

Thanks so much for the report on the Fair Use Day activities! I'll leave comments about the overall fair use horizon for others, but I did want to address your question on whom we should include in dialogues about fair use in academia, not necessarily in the creation of fair use standards, but at least in the classroom where instructors put it into practice.

Undergraduates can be enriched by inclusion in the debate over whether and what copyrighted material is made available by their instructors for classes. As a relatively recent college graduate, all I can recall hearing about photocopied reading material or films shown in class was occasional grumbling about how difficult the copyright puzzle was to navigate by busy instructors who were trying to keep their students informed on the topic at hand while keeping the cost of buying multiple books down. I appreciated their efforts, certainly, but didn't learn anything about fair use as it related to class materials.

Even a relatively quick discussion of these issues could enrich this age demographic, most of whom have little experience in copyright matters outside of file sharing. I, for example, had little grasp of copyright issues outside of having been a Napster user since the age of 16. If I remember correctly, my peers and I had no real concept of fair use; we only saw that Napster's founders, Shawn Fanning and Sean Parker, looked just like us
(college students who created the service in their dorm rooms) and not
like the record companies (corporations without a personal identity
behind them), meaning that it felt "okay" to find music for free in this manner even though artists and their labels were obviously not happy about it. With the shutdown of various file-sharing services like Napster and subsequent lawsuits pinned on young folks by the RIAA, I doubt that many college undergraduates have a positive impression of the nebulous world of copyright, or have taken the time to explore its implications for their lives beyond file sharing. This could be an opportunity to turn that around, sparking new interest in the applications of fair use and copyright law, in the classroom and beyond.

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http://www.googlizationofeverything.com/2008/10/my_initial_take_on_the_g...

 

That's the url for Siva's excellent summary with commentary on the Google Decision---with implications for fair use.

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I once attended a conference on copyright in the developing world. It didn't take long to realize that it was a US funded conference to get the media to enforce American copyright and report on it in a negative way. I found it startling that they spent so much money (they put us in a 5-star hotel on the Dead Sea for three days) to 'educate' journalists in Jordan about how to correctly report on copyright.
Since then, and from the discuss on hand, I see copyright as imperialism, especially in the so-called developing world. Fair use and the creative commons are excellent movements to counter the suppression and thwart the control of a few select countries. A re-working of the 'law' is in order to re-negotiate the structures of power over information.

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You make a great point here, Jonathan - thanks for it. Yes! Undergraduate students certainly need to be included in this conversation. As multimedia literacy/ digital literacy becomes more prevalent in higher education, conversation that demystifies copyright and intellectual property is imperative. One organization that aims to connect students to a thriving community is Students for Free Culture, a description from their website:

"Students for Free Culture (SFC) is a diverse, non-partisan group of students and young people who are working to get their peers involved in the free culture movement. Launched in April 2004 at Swarthmore College, SFC has helped establish student groups at colleges and universities across the United States. Today, SFC chapters exist at over 30 colleges, from Maine to California, with many more getting started around the world.

Students for Free Culture was founded by two Swarthmore students after they sued voting-machine manufacturer Diebold for abusing copyright law in 2003. Named after the book Free Culture by Stanford University law professor Lawrence Lessig, SFC is part of a growing movement, with roots in the free software/ open source community, media activists, creative artists and writers, and civil libertarians. Groups with which SFC has collaborated include Creative Commons, the Electronic Frontier Foundation, Public Knowledge, and Downhill Battle.

Students for Free Culture has four major functions:

  • Creating and providing resources for our chapters and for the general public
  • Outreach to youth and students
  • Networking with other people, companies and organizations in the free culture movement
  • Issue advocacy on behalf of our members"
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This is an excellent observation. The international complexities of copyright law are even greater than the domestic issues we have been focusing on in this forum. In Peter Jaszi's keynote address on Fair Use and the Future of the Commons at USC, he was hopeful about virtually all aspects of fair use...except the potential that the ultra-restrictive copyright enforcement that is attached to international trade agreements via the WTO could be imported to domestic cases in the future. The cultural imperialism of the copyright industries extends to our nation's youth as well, with well-funded campaigns from the MPAA and RIAA included in K-12 curricula across the country. A much-needed counter-argument to this has finally been completed by the Center for Social Media in the form of a Best Practices guide for Media Literacy among K-12 educators, which will be released publicly on November 11, 2008. However, I would note that Jaszi responded to the question of legislative reform in the most emphatic terms possible, arguing that the last thing we want is for legislators to begin defining and clarifying the terms under which fair use is allowable. As weak as today's fair use is often perceived to be, the current system is far better than what the congress and its many lobbying organizations would deliver in the way of new laws. The lesson? Fair use sucks; long live fair use! 

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Thanks, Veronica for your excellent summary of the Fair Use event at USC. With regard to classroom uses of copyrighted material, one thing to remember is that the DMCA (Digital Millennium Copyright Act), which prohibits the circumvention of copy-protection measures in digital media, has no provision for fair use. Following an influential white paper from the Berkman Institute titled "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age," the copyright office in 2006 issued an exemption allowing media studies educators to break DRM for classroom uses only. Although this was hailed as a breakthrough for media studies, it arbitrarily and unfairly ignored identical needs among educators in every other field that teaches with media. Why should media studies receive this type of dispensation, while educators in media-rich fields such as history, art, or literature are forced to resort to criminal behavior? Likewise, the definition of the "classroom" has been very narrowly defined by legislation such as the TEACH Act to exclude the vast majority of online educational resources unless circumscribed by costly and cumbersome access restrictions. A revealing report from the University of Illinois' Digital Citizen project recently confirmed the fact that most college students begin file-sharing in middle and high school, not in college, so the heavy-handed tactics of the MPAA and RIAA to deter student file-sharing at the university level has led to extraordinary resentment among students. The Free Culture movement has been very effective at galvanizing resistance among students at the college level and in supporting the rise of open source alternatives to proprietary media formats and software across the board. Related efforts such as the Participatory Culture Foundation's recently formed Open Video Alliance, aim to support the development and proliferation of non-proprietary, open source software for virtually all media formats and functions. The days of DRM and high-profile lawsuits by MPAA/RIAA are numbered, as born-digital generations increasingly grow up assuming they have a right not just to consume, but also to produce, transform and create media as contributors and beneficiaries of an open, vibrant, cultural commons.

128

Educators are beginning to recognize the need for advocacy and education about fair use. More than 90 people attended the release of the Code of Best Practices for Media Literacy Education on Tuesday, November 11 at the National Constitution Center. Another 120 educators from all across the nation were viewing and discussing the live streaming videocast of the event. The mood was celebratory!

The time is ripe for fair use to "get its groove on," and for the media literacy community, the process of developing a code of best practices helped create an advocacy community among a diverse multidisciplinary coalition of educators at all levels: in K-12 education, university and college faculty, and leaders of the youth media community.

With the rise of digital media tools for creating messages, learning and sharing, it is more important than ever for students and educators to understand their responsibilities and rights under copyright law. But many are confused about what they can (and can?t) do when using mass media, popular culture and digital media as tools to promote critical thinking and communication skills.

The Code of Best Practices for Fair Use in Media Literacy Education reflects a national-level consensus among media literacy educators in K-12, university and afterschool programs. It identifies five principles that articulate how fair use applies to the work of students and teachers, both in and out of the classroom.

It's available at:
http://www.centerforsocialmedia.org/resources/publications/code_for_medi...

Check out the multimedia curriculum materials, including case study videos, lesson plans, and "Schoolhouse Rock" style songs designed to help educators teach about copyright and fair use:

http://mediaeducationlab.com/index.php?page=265

The code was developed by the National Association for Media Literacy Education, the Action Coalition for Media Education, the National Council of Teachers of English, the Visual Communication Studies Division of the International Communication Association, and endorsed by the Media Education Foundation. The code was facilitated by Peter Jaszi and Patricia Aufderheide of American University, and Renee Hobbs of Temple University's Media Education Lab. This project was funded by the John D. and Catherine T. MacArthur Foundation, with additional funding from the Ford Foundation.

 

Renee Hobbs

Professor

Founder, Media Education Lab

Temple University

Philadelphia PA

Email: renee.hobbs@temple.edu

Web: http://mediaeducationlab.com

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