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A new era in defining and applying fair use norms

By Georgia Harper

About 12 years ago, I was involved in the CONFU effort to define, or rather, provide guidance for, fair uses in educational contexts in the then-emerging world of digital networks. We worked on electronic reserves, multi-media educational materials, interlibrary loan, distance learning and the use of digital images. This was in many ways a formative experience for me. I had been practicing law only about 7 or 8 years and concentrating on copyright for about 5. It was a monumental effort and it went on for a very long time and it resulted in as close to nothing as you can get without actually being nothing. After all, there was a report, there was a lot of talk about the "guidelines" over the next few years. There were fair use workshops, seminars, series of town hall meetings and conferences. But there was not much in the way of clarity and understanding. And the guidelines were universally denounced, at worst, and simply restated at best. I don't think very many universities actually follow them. Really. They just don't work. They were as impractical as you could get. What on earth were we thinking? I am so excited to see that a new approach is emerging that cuts out the dark heart of what was wrong with those efforts and the ones that preceded them (the Guidelines for the Educational Use of Copyrighted Materials that Congress forced into being in 1976 with the revision of the Copyright Act). This new effort has a different name. It goes by "best practices." I watched in awe and amazement as the Center for Social Media and American University's Washington School of Law rolled out the first effort, the Best Practices for Documentary Film Making. Pat Aufderheide and Peter Jaszi orchestrated this coup and are to be roundly congratulated, for they have followed it up with another feat -- Best Practices for Fair Use in Online Video. These efforts provide a qualitatively different kind of guidance to those who use others' works in their creative efforts. They say, "this is what we have learned through undertaking a thoughtful process of inquiry, research, and analysis about reasonable practices today in the use of others' works." The effort does not attempt to force a compromise between content owners and uses, envisioned as adversaries. It recognizes that we are *all* owners and users of others' works. Even the "big" owners are users of others' works and would benefit from more reasonable approaches to fair use to enable creativity. But educators in particular cannot thrive without a reasonable scope for fair use. Harvard's Berkman Center is in the early stages of designing an effort that builds upon the Center for Social Media/Washington School of Law's efforts as well as other recent efforts, for example, The Cost of Copyright Confusion for Media Literacy, produced by the Media Education Lab at Temple University and Center for Social Media and Will Fair Use Survive? by the Brennan Center for Justice at NYU. It is called The Right to Teach: An Educational Fair Use Project. The paper is in the form of a proposal at this point, and it asks for feedback and for collaborators. Anyone who is interested should get in touch with Adam Holland, as the paper suggests. Pat Aufderheide was a speaker at our Center for Intellectual Property's Annual Symposium this year, in May. She spoke about these efforts, especially the newest one, the Best Practices for Online Video. She said that the secret to their success so far has been that they did not seek stakeholder compromise. As I had described the "guidelines" phenomenon as well as the process that results in legislative "compromise" in my presentation at the same Symposium,

... "negotiations among the stakeholders" are a sham. We can no longer pretend that locking the powerless in a room with the powerful will produce a compromise in the public interest.

The failure of every such "compromise" effort over the years (TEACH Act, all existing fair use guidelines, Section 108 study group, current efforts to deal with orphan works, etc. etc.) is proof enough that, far from achieving their stated goals of promoting reliance on fair use or other statutory exceptions, they alienate the creative community, result in hostility towards the law and legal processes, and ultimately chill the very creative energy the law is supposed to encourage. Enough is enough. So I am celebrating the new Best Practices for Online Video. These examples of uses that do not threaten, but support and encourage creativity in a very changed environment of widely dispersed creativity are such a welcomed breath of fresh air in what had become a stale and smoky window-less Washington back-room (literally). And anyone wonders why Congress' approval ratings are at 9% (and sinking). All of which reminds me of a very interesting essay by James White that I read over the weekend. It was delivered at a conference last summer titled, Law and Democracy in the Empire of Force: Law, Economics and Torture (scroll down in the table of contents for a link to the article). Trust me, it's related. White opines about the root causes for the failures of our institutions, such as Congress and the courts.

Full post as published by ©ollectanea on July 21, 2008 (boomark / email).