I just finished reading the Brennan Center for Justice’s report on fair use. This public policy report was funded in part by the Free Expression Policy Project and describes, in frightening detail, the state of public knowledge regarding fair use today. The problem is that the legal definition of fair use is hard to pin down. Here are the four factors that the courts use to determine fair use:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
From Dysfunctional Family Circus, a parody of the Family Circus cartoons. Find more details at illegal-art.org
Unfortunately, these criteria are open to interpretation at every turn, and have provided little with which to predict any judicial ruling on fair use. In a lawsuit, no one is sure of the outcome of their claim. This causes confusion and fear for individuals and publishers, academics and their institutions. In many cases where there is a clear fair use argument, the target of copyright infringement action (cease and desist, lawsuit) does not challenge the decision, usually for financial reasons. It’s just as clear that copyright owners pursue the protection of copyright incorrectly, with plenty of misapprehension about what qualifies for fair use. The current copyright law, as it has been written and upheld, is fraught with opportunities for mistakes by both parties, which has led to an underutilization of cultural assets for critical, educational, or artistic purposes.
This restrictive atmosphere is even more prevalent in the film and music industries. The RIAA lawsuits are a well-known example of the industry protecting its assets via heavy-handed lawsuits. The culture of shared use in the movie industry is even more stifling. This combination of aggressive control by the studio and equally aggressive piracy is causing a legislative backlash that favors copyright holders at the expense of consumer value. The Brennan report points to several examples where the erosion of fair use has limited the ability of scholars and critics to comment on these audio/visual materials, even though they are part of the landscape of our culture.
That’s why
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4 thoughts on “fair use and the networked book”
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I also just came across this commentary by Larry Lessig. It may not exactly be fair use, but it is highly relevant to the idea of remixing and formulating culture.
I agree that open content is important, but it’s no substitute for fair use rights. The Family Circus example illustrating the article is a case in point — there’s no way Family Circus will ever agree to an open content license, so we must keep working to preserve fair use.
Dave, you’re totally correct. I should have been more clear in my last paragraph: I think that open-content is important because it will generate alternative media markets, but that we must fight for fair use, because culturally important content will, in many cases, continue to be copyright protected material.
I certainly agree to the importance of open access as well as creative commons. Jesse’s last comment points to one of the most important issues, that creating open content and using the creative commons are proactive. Therefore, the burden is placed upon the author. The creatvie commons merely removes status quo copyright restrictions. Clear guidelines and legal protection for fair use is crucial because the vast majority of content resides outside of the open access and creative commons sphere.