What's so fair about fair use?
There's lots of talk about fair use ...
Jessamyn recently posted an interesting comment on fair use and librarians. To whit:
Librarians need to make sure that they are not being cowed by nebulous copyright boogeymen and instead advocating for fair use rights for their collections and for their patrons. That's what access is all about. So says the MLA, the other MLA, AALL and many more.
As it happens, this is also a theme in Jed Horowitz's film Willful Infringements, and a theme in the presentation he made at ALA Orlando (which I will blog about, soon ...). According to Horowitz, Section 504 of the Copyright Act limits statutory damages for nonwillful copyright infringement by exempt institutions to $200 (I don't remember offhand if that's per work or per use).
Of course, as Lawrence Lessig likes to point out, legally, fair use is just an affirmative defense ... it may keep you from being found guilty if brought to court, but it won't automatically keep you out of court in the first place. As as Donna Wentworth of Copyfight recently said: "Larry, meanwhile, argued that 'fair use is the right to hire a lawyer.'"
Most librarians, I think it's safe to say, would really prefer not to hire a lawyer. Does this natural reticence/caution cause too much deference towards copyright holders? Are librarians indirectly eroding one of the basic working principles of information access?
Siva Vaidhyanathan recently made an observation regarding fair use:
This is the problem with fair use: It is a gamble. If you were confident that the copyright holder would not care or would not bother for fear of bad publicity, then you could go ahead and use the material as the law intended you to do. But we have all been taught that copyright holders are vultures out for a quick and easy meal. This is not always true.If we don't make a stand against copyright vultures we might as well be waiting around to become carrion.
The important thing to remember here is that if you follow your librarian's advice and ask permission, you are making this entire fair use calculus irrelevant. Why do we need section 107 at all if educators are just going to cower upon the advice of copyright experts on campus?
It is our duty to push the envelope of fair use. And it is our duty to demand that our institutions back us up when threatened by bullying copyright holders who do not respect values of openness and freedom.
In keeping with the theme, Lessig comments on a new film about the Fox News channel that apparently uses a number of Fox News clips without permission, based upon fair use for criticism/commentary.
The discussion on fair use is far from settled, and there's definitely room at the table for librarians to articulate our needs, perspectives and values, regardless of what positions we take.