Professors and Copyright Experts Urge Academics to Reclaim Fair Use

Jan 13, 2012

Do you know copyright infringement from fair use? Many in academia feel uncertain about when it's necessary to obtain permission to use copyrighted work. In their new book, American University professors Patricia Aufderheide and Peter Jaszi look to provide guidance scholars can use to protect themselves without forfeiting 'fair use' rights. recently caught up with Professor Aufderheide to talk about her and Peter's work.

By Douglas Fehlen

Patricia Aufderheide

Patricia Aufderheide

Peter Jaszi

Peter Jaszi

While perhaps not the most obvious stronghold of censorship, college campuses face more than their fair share of it today. That's the conclusion reached by professors Partricia Aufderheide and Peter Jaszi, authors of 'Reclaiming Fair Use: How to Put Balance Back in Copyright.' Aufderheide and Jaszi suggest that academics, fearing that the use of copyrighted work will create legal troubles, often suppress the scope of their scholastic inquiries. In the book, the professors provide advice meant to protect professors and students from copyright infringement while not limiting the reach of their own work. In 'Reclaiming Fair Use,' you suggest that academics engage in a form of self-censorship when it comes to incorporating movies, music and other products of pop culture into their work. Can you talk about this phenomenon?

Patricia Aufderheide: When people don't understand their rights under copyright, they not only get frustrated in their attempt to create new work and to make productive re-use of copyrighted material, but they make assumptions about what will be possible for them to do. They self-censor their own thoughts and ambitions. For example, when we surveyed communication scholars, we found out that many had not undertaken research projects because of copyright considerations. This meant that they often did not even try to do research concerning the implications and effects of popular culture. When we surveyed documentary filmmakers, we discovered that they simply assumed that as professionals they would never begin projects that would require heavy use of copyrighted materials. This meant that they excluded projects touching on, for example, commercial film, popular music and politics (for fear of dealing with television news) - and rejected film styles such as parody (for fear of being misinterpreted).

We know that before designers of open courseware - curriculum freely available to all on the Internet sites of universities - created a code of best practices in fair use, they sometimes created courses they called 'skeletons,' stripped to the bone and lacking the examples and illustrations that make teaching effective. Worse, they simply excluded some kinds of courses as too dependent on copyrighted material to share. Each of these groups has changed its practice and expanded its range of possibilities with the creation of codes of best practices. For instance, we recently heard from Lindsey Weeramuni, head of MIT's OpenCourseWare initiative. 'Fair use is now an integral part of our publication process,' she wrote. MIT, which previously had let humanities courses especially languish now has 31 courses online with fair use in them, with another 13 in the pipeline. 'Our approach has been to include a credit line that directs users to our fair use FAQ page. And, of course, we have not yet been challenged or questioned by anyone on this issue.' You feel that perceived risks associated with copyright infringement are often overstated. How do these exaggerated concerns originate and become widespread?

PA:People receive misinformation from a variety of sources. Gatekeepers are often sources of misinformation, which they may believe or they may simply provide in an attempt to reduce their own risks to zero. Employing free speech rights always involves risk, however minimal or even negligible it may be; reducing risks to zero in copyright usually requires either foregoing expression or tailoring it to the price and wish of licensors. For instance, teachers often tell children never to employ images 'from the Internet' in their homework, although if the students or their teachers understood how to employ fair use they could use images from any source within the logic of fair use. Teachers in turn are told by librarians, IT people and administrators that they must not use any unlicensed materials.

Large media and software companies and their associations have also contributed to misinformation, in part by campaigns to denounce and discourage 'piracy,' which is often an umbrella term under which legitimate fair use unjustly gets swept. Ironically, outrage at corporate copyright overreach often contributes to fear by exaggerating the risks of informed fair use decisions.

Well-intentioned attempts to substitute bright-line rules for the case-by-case reasoning that fair use requires generate misinformation. Such 'guidelines' might suggest, for example, that using a fixed number of words or seconds or a percentage of the work will be safe. They often also include scary warnings about exceeding these rigid rules that are not grounded in any law. This further confuses people.

Finally, often people focus on the occasional lawsuit, and not on the vast number of routine acts of fair use conducted without any controversy every day. They confuse flamboyant attempts to court trouble for publicity with good faith efforts to employ the law correctly. Many in academia suggest you offer the most developed perspectives available on fair use doctrine. How have your and Peter's backgrounds affected your perspectives on this important aspect of copyright law?

PA: My work with documentary filmmakers and journalists and experience with long-form interview techniques provided both a pool of initial study participants and a confident approach to methodology of investigation. Peter's deep knowledge of copyright scholarship and long practical experience working with the Copyright Office, with legislators and with professional organizations on copyright issues provided a deep pool of legal expertise. Peter and I discovered that we shared a common commitment to the notion that education - on copyright as well as other things - leads to agency, and that citizen agency is a powerful force to change practice. We have both been richly rewarded in our work by seeing practice change as a result of professional groups coming to understand their rights. Part of the difficulty academics and others have in negotiating copyright is that the existing law was enacted in 1978, well before the Digital Revolution transformed our world with an influx of electronic media. What are some of the most urgent copyright issues not addressed by the existing law?

PA:The problems that affect anyone who wants to create now are not conceptually different than they were before digital capacity and Internet communication opened up new opportunities for many more people to share their work. The 1976 rewrite of copyright law, which went into effect in 1978, formalized the increasing power of copyright holders against the rights of new copyright users (many of whom by definition are not yet born). Later legislation further changing the copyright law, including the Digital Millennium Copyright Act of 1998, further imbalanced copyright policy. For this reason, fair use is more important than it has ever been before.

Legislative reform to rebalance copyright law is highly unlikely; any such attempts would be used by corporate players to further distort the law. But in practice, all legislative copyright action appears to be on hold, as corporate players wait to see business models stabilize. One important potential improvement, which in fact would be a win-win reform, can provide an example: legislation to create greater access to orphan works - works whose copyright owners are lost - has been stalled, even though the proposed solution would benefit any copyright holder eventually found and would facilitate the creation of new work in the meantime. Are there any important court cases currently underway that, once decided, could have significant repercussions for fair use?

PA: We are keeping our eye on litigation of several publishers against Georgia State University, for alleged infringement in their e-reserve policy. You've developed the Center for Social Media at American University. Can you share information about this group and what you hope it can achieve?

PA: The Center for Social Media exists to showcase and analyze media for social action. The fair use work is only one of several projects at the Center, which is part of the School of Communication. I founded the Center. Peter founded the Program on Information Justice and Intellectual Property in the Washington College of Law at American University. That Center conducts research and showcases information on information justice and intellectual property, including fair use. You have been involved in developing codes of best practices that articulate fair use concepts. Can you talk about these codes?

PA: The Center for Social Media has co-facilitated the creation, by professional organizations, of codes of best practices in fair use. These codes were created, after research we conducted into current practice, by organizations hosting small group discussions in various sites appropriate to the group or groups' constituencies. Once common situations for employing fair use are discovered, the discussion members establish the parameters of appropriate fair use. Their conclusions are summarized in a draft code, which is analyzed by a legal advisory board for legal accuracy. Each code of best practices is appropriate to the professional community that has shaped it. How can professors access existing codes for best practices? Are additional codes in the works?

PA: You can find eight codes conveniently on the Center for Social Mediasite, although all of them also reside on the sites of the organizations that participated in making them. Librarians are currently putting the final touches on their own code of best practices, through the Association of Research Libraries.

If you're a scholar concerned about copyright, how can you protect your work?

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