How Does Fair Use Fit Into The Critique Of Copyright?
from the reclaiming-fair-use dept
Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We’ll have another excerpt soon, and will be scheduling the author chat in the near future.
Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its
interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the
scene, and has become a sturdy tool for a wide range of creators and users. This transformation has
been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.
It happened in part because of changing scholarship. A generation of legal scholars has developed
arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same
time, cultural studies scholars have showcased the relevance of fair use to their work, which often
involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use
banner, publicly using their rights and encouraging their students to do the same.
Settled, established communities of creators, administrators and users—filmmakers, teachers of
English and visual art, librarians, makers of open course ware, poets, and dance archivists–have
identified fair use as a necessary tool for them to use to achieve their missions. They have turned
to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through
their professional associations.
Members of these communities have become active advocates for fair use. Their organizations and
representatives have appeared before the Copyright Office to testify about the way that the DMCA,
which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in
Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they
receive takedown notices on YouTube, they issue counter-takedown notices and explain why their
uses are fair. Remixers have also gone before the Copyright Office to protest the way that the
DMCA impedes their creations, which are often socially critical.
New businesses have flourished employing fair use, and their trade associations have supported
them. Google, the Consumer Electronics Association, and the Computer and Communications
Industry Association have all advocated for fair use. Legal and professional services for communities
of practice, such as lawyers and web developers, have built their fair use expertise to serve their
Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier
Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for
the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use.
Between the scholars, the creators, artists, and organizations, fair use is emerging out of a
twilight existence where, for decades, it had lived. During those decades, many professionals and
especially professionals in the corporate media environment—whether broadcast journalism, cable
documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a
professional, you might not even have heard of it. That has changed.
The goals of various actors in this resurgence of fair use differ. Some simply want to assert their
rights to be able to improve their work, lower their costs and start or grow new businesses. Some
want to expand the sphere of freedom of expression, so that copyrighted culture does not become
off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep
fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between
owners’ rights and the society’s investment in new cultural creation. Some believe that fair use,
exercised to the maximum, will provide concrete experience of the limitations of today’s copyright
law, and point to more effective change. They all share a common understanding that individual and
community action simply to assert their rights has an immediate and long-range effect on markets
The resurgence of fair use, the topic of this book, forms part of a much greater discourse in the U.S.
and world-wide, critiquing the most stifling, confining features of copyright practice today. That
discourse is variously called copyright reform, copyfighting, the copyleft, and cultural/creative/intellectual commons, depending on your angle of entry. Some people call it a movement, though
it still lacks evidence of broad social mobilization (as Patrick Burkart has noted for music). The
people in this discourse share an acute awareness that copyright policy and practice are tilted unfairly
toward ownership rights, in a way that prejudices the health and growth of culture. This broader
discourse is evident in many ways, besides the efforts to make fair use more useable: proposals for
formal copyright reform; efforts to create copyright-light or copyright-free zones or to expand the
public domain; and civil disobedience.
Some propose copyright reform to shrink the monopoly claims of owners. Veteran legal scholar
Pamela Samuelson has proposed reconceptualizing copyright law from a blank slate. She imagines a
simpler, shorter copyright law, grounded in principles rather than the “obese Frankenstein monster”
it has become through stakeholder pressure and endless tinkering. Neil Netanel has proposed a
range of tweaks to pull back the extent of copyright protection, such as limiting copyright length
and dropping protection against the preparation of derivative work, so that less licensing is needed.
Lawrence Lessig also has argued for simplifying and minimizing copyright protection for owners.
Some people offer suggestions to improve the efficiency of licensing, which today is messy,
clumsy, and frustrating. Prof. David Lange, for instance, proposed increased use of statutory (or
compulsory) licensing schemes, such those that allow today for the retransmission of TV signals
by cable and satellite systems. Others have suggested new voluntary digital platforms through
which users could make “micro-payments,” tiny payments for each individual access to copyrighted
material offered commercially. Legal scholar William Fisher has proposed a voluntary collective
administration system, akin to those that today enable public performances and broadcasts of
music, and to collect licensing payments through Internet service providers and distribute them
to copyright owners and artists whose material is used online. Some copyright owners, including
the Association of Commercial Stock Images Licensors, are even toying with how to restructure their own
licensing schemes, to eliminate archaisms such as regional rights in a transnational Internet age.
The ideas and projects all respond to the real problem that copyright law now fits ever more poorly
the way people are actually making culture. They may well take some time to become useful, though.
The big stumbling block both to fundamental copyright reform and to licensing reform is that large
copyright holders—key stakeholders in any change in licensing schemes—are not able to agree on
what they would like to do. They do not know what business models will be most relevant in a few
years, so living with a lumbering, archaic licensing system with a lot of holes in it looks better to
them than change that might have unanticipated downsides. As major stakeholders in any legislative
reform, they will stall, derail or rewrite legislation in the same unbalanced direction as today, until
their interests shift with shifting business models. As major actors in licensing, they will collaborate
on new methods of licensing when they understand how emerging business models favor their
Another part of this broad copyright critique is a range of efforts to expand copyright-free and
copyright-light zones, discussed by David Bollier and James Boyle. People in this arena often
invoke the phrases “the public domain,” “open access,” and “Creative Commons.” Projects such
as open source software (collaboratively created and freely offered software), open source (free
and accessible to all) academic and scientific journals and databases, and OpenCourseWare (freely
available curriculum materials) offer such alternative zones. The various Creative Commons licenses
contribute to this alternative zone by offering a way for creators to give their work away more easily,
although with conditions, by labelling it appropriately.
These efforts have indeed created significant copyright-light zones, as well as creating enormous
enthusiasm for a more flexible copyright policy. They work well for people who want to give their
work away and share it without economic reward. A pool of noncommercial works now exists, but
it is tiny compared with the field of copyrighted and often-commercial work. Viacom and News
Corp will continue to copyright their holdings and treat them as assets. The existence of copyright-
light zones, however large, does not address the frequent need that people have to access mass
commercial culture to make new cultural expression.
Finally, copyright critique is seen in opposition and resistance, such as giddy, open flouting of
copyright law by “culture jammers,” pranksters and appropriation artists. Burkart describes this
work as part of the incipient and still-inchoate cyberliberties social movement, taking up “the politics
of symbolic action,” typically “weapons of the weak.” These people and groups—Negativeland, the
Yes Men, Adbusters magazine and others—position themselves on the margins of official culture,
and see themselves as reclaiming culture one image or gesture at a time. They also see themselves
as challenging the terms of long and strong copyright. Ironically, many times the uses they make of
copyrighted material are actually completely legal fair uses.
This broad and diverse discourse calling for changes in long and strong copyright thus has many
faces and approaches, each with opportunities and limitations. They add up to a broad public
awareness of trouble around long and strong copyright. Within this discourse, efforts to make fair
use more useable stand out because they can be done now, by people in many walks of life; they can
be publicized and celebrated, thus spreading the word; and because using this right expands its range
Fair use is not necessarily a popular phrase for all in this broader collection of copyright critics.
Some regard it as hopelessly compromised because of technologies such as encryption, which
override a user’s will to excerpt. Some believe that exemptions such as fair use are good but that
fair use is too murky or unclear to be a helpful exemption. Some believe that fair use partakes too
much of the status quo, and that another copyright-free world is possible. One way that concern
is expressed is to argue that it is too limited a doctrine, and that we need to reach beyond it to
accomplish our goals.
In fact, under the current interpretation, fair use does apply in a wide variety of situations. They
range from making copies of TV programs on our DVRs to creating digitally annotated critical texts
to making an archive of the worst music videos ever to making relevant curriculum digitally available
to students. Fair use has evolved, having different functions at different moments in U.S. history.
Today it has an ever-growing importance and value within copyright, as a primary vehicle to restore
copyright to its constitutional purpose, and the transformativeness standard assists in creating that
value. Fair use is like a muscle; unused, it atrophies and exercise makes it grow. Its future is open;
vigorous exercise will not break fair use.
Fair use will continue to be important, no matter what the success of other aspects of long and
strong copyright protests and proposals. Even if we could wave a magic wand and execute reform
of copyright policy that rolls back some of the longest, strongest terms in copyright policy, fair
use would still be an important tool to free up recent culture for referencing in new work. Even
if licensing were much easier than it is today, it would never address all the needs people have for
use of copyrighted material. Even if copyright-light zones vastly expanded, the need to access the
copyrighted material existing outside those zones without permission or payment would still remain.
Sometimes people need to use materials that the copyright owner simply will not license to them.
Fair use will be important to anyone working in the cultural mainstream. Culture jamming can be
fun, although some culture jammers are actually just employing their fair use rights without knowing
it. But most creators, teachers, learners and sharers of information don’t see themselves as criminals
or pirates, and don’t want to.
Reclaiming fair use plays a particular and powerful role in the broader range of activities that
evidence the poor fit between today’s copyright policy and today’s creative practices. In a
world where the public domain has shrunk drastically, it creates a highly valuable, contextually
defined, “floating” public domain. The assertion of fair use is part of a larger project of reclaiming
the full meaning of copyright policy—not merely protection for owners but the nurturing of
creativity, learning, expression. Asserting fair use rights and defending the rights of others to use
them is a crucial part of constructing saner copyright policy.