{"id":246,"date":"2017-02-20T22:08:15","date_gmt":"2017-02-20T22:08:15","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=246"},"modified":"2017-02-20T22:08:15","modified_gmt":"2017-02-20T22:08:15","slug":"fair-use-week-2017-day-one-with-guest-expert-kenneth-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2017\/02\/20\/fair-use-week-2017-day-one-with-guest-expert-kenneth-crews\/","title":{"rendered":"Fair Use Week 2017: Day One With Guest Expert Kenneth Crews"},"content":{"rendered":"

\"FUWComing to New Terms with Fair Use<\/strong><\/h2>\n

by Kenneth D. Crews
\n<\/strong><\/h4>\n

One of the virtues of the passage of time is that you get to see a lot of stuff happen and change.\u00a0 Having spent much of my career on fair use, I have seen many perspectives and takes on this vital copyright doctrine.\u00a0 It continues to pose challenges and sometimes even offer welcome solutions.\u00a0 Now is the beginning of Fair Use Week<\/a>, and I am still coming to terms with the essence of fair use and how it serves different people in different situations in different ways.\u00a0 From a right, to a defense, to a policy, and to risk implications \u2013 perspectives on fair use are shaped by the needs of the community, the legal system, and even personal proclivities.<\/p>\n

Right or Privilege?<\/strong><\/p>\n

Some travails about the character of fair use are familiar.\u00a0 For decades, one debate over the nature of fair use has persisted:\u00a0 Is fair use a right or a privilege?\u00a0 My first answer today is the same as it was long ago:\u00a0 It does not matter what we call it, as long as we are consistent.\u00a0 My main point of consistency, however, is that we should label all copyright opportunities with the same terminology and give them the same conceptual status.\u00a0 If fair use is a right, then owners also have rights.\u00a0 If fair use is a privilege, then ownership is also a privilege.\u00a0 Frankly, I think \u201crights\u201d is more accurate.\u00a0 The overriding concept is that fair use is an integral part of the formula and structure of copyright.\u00a0 The law is itself a bundle of rights for owners as well as for users.<\/p>\n

Right or Affirmative Defense?<\/strong><\/p>\n

One argument against a fair use \u201cright\u201d is its role as an affirmative defense.\u00a0 What is the position of fair use in the legal system?\u00a0 Is it really a right that may be asserted by users in a manner that is legally protected, or is it only a defense to raise in response to an infringement lawsuit?\u00a0 Judicial opinions suggest more strongly than ever that fair use is both<\/em>.\u00a0 It is unquestionably a defense in litigation, but fair use is today comfortably recognized as an opportunity for users to be proactive in their asserting of a valid and protectable ability to use a copyrighted work.<\/p>\n

The dancing baby video implicitly makes this point.\u00a0 In Lenz v. Universal Music Corp<\/em><\/a>.<\/em>, a mother who took great delight in her your child dancing to the music of Prince, posted to YouTube a video of her buoyant and happy daughter<\/a>, with the recording of Let\u2019s Go Crazy<\/em> playing in the background.\u00a0 The court did not actually rule that the use of the music was fair use, but did hold that a copyright owner is obliged to give some consideration to the possibility of fair use when sending a takedown notice.\u00a0 That decision effectively integrated fair use into the full calculation of the expanse of the owner\u2019s rights.<\/p>\n

Fair Use as Policy<\/strong><\/p>\n

As fair use assumes a more secure place as a set of public rights, and as part of the definition of a limited scope of authority that belongs to the copyright owner, users and their host institutions \u2013 whether nonprofit universities and libraries or commercial entities and major businesses \u2013 find today that having a policy on the scope and application of fair use is imperative.\u00a0 The policy can be practical.\u00a0 It can guide members of the community through the meaning and application of the law for their common needs.\u00a0 The policy can also be conceptual.\u00a0 It can be a vision statement about the importance of the law in support of the mission and goals of the organization.<\/p>\n

A good policy can be both and maybe even more.\u00a0 Our understanding of fair use is a policy decision by itself, and recent litigation involving fair use and electronic reserves at Georgia State<\/a> University<\/a> has underscored the importance of having a good policy.\u00a0 That same litigation also has helped us better see the policy positions we ought to be avoiding.\u00a0 Through much of the case, as it proceeded through trial and appeal, the publishers bringing the legal action pressed the court to adopt interpretive guidelines from 1976<\/a> as the standard that should be applied and enforced as a policy limit at the university.\u00a0 The judicial ruling<\/a>s on this case firmly rejected that approach and criticized the 1976 guidelines as too rigid and too narrow to be the right standard.<\/p>\n

Rise of Risk Analysis<\/strong><\/p>\n

Probably everyone reading this post knows that a determination of fair use is based on an application of the four factors in the statute<\/a>.\u00a0 However, I note a strong trend to fold a risk analysis into the decision.<\/p>\n

Consider a common scenario:<\/em>\u00a0 Professor wants to digitize clips of motion pictures for use in a film analysis course.\u00a0 The four factors may well point to fair use, especially if the clips are short and they are used in a manner that tightly ties the use to and educational objective.\u00a0 The professor can become more reticent about fair use, however, when the films are owned by major production companies, or if the resource is used by a large group.<\/p>\n

The decision to proceed might also depend on some technical aspects of copyright law, including whether the films are registered with the U.S. Copyright Office, which in turn can shape some infringement risks and the prospect of statutory damages and attorney\u2019s fees.\u00a0 The initial question may be about fair use, but realistically our answers are often based on much more.<\/p>\n

Sometimes Too Much<\/strong><\/p>\n

For some users, fair use is more than they are ready to absorb.\u00a0 I have worked with colleagues who, in some situations, have been unwilling to take on the challenge and risks of fair use.\u00a0 The reasons are many.\u00a0 Sometimes the task is daunting \u2013 which is more often true when the project is expansive, the activities are high-profile, and infringement liabilities could escalate quickly.\u00a0 Sometimes the colleague is simply not ready to take on the risks.\u00a0 I might make a strong pitch for fair use, but sometimes accepting and applying fair use can be a personal decision about risks, pressures, and disruptions.<\/p>\n

These episodes remind us that fair use can also be characterized as a set of responsibilities.\u00a0 It is a right of use, and the factors call on us to responsibly<\/em> consider the implications of the use on the market for or value of the original work.\u00a0 Because fair use also calls on us to exercise a right under the law with legal consequences, we need to be respectful and responsible toward ourselves<\/em>.\u00a0 Each of us will engage with fair use differently, and we should act with awareness of the real implications of our decisions for ourselves and others.<\/p>\n

International Export<\/strong><\/p>\n

As a final note, we need to appreciate that fair use has also fast become a major American cultural and economic export.\u00a0 In my blog post from Fair Use Week 2016<\/a>, I wrote in some detail about the appearance of similar statutes in the copyright law of a short list of countries.\u00a0 That list continues to expand.<\/p>\n

Most recently, a commission of the Australian government has issued a report recommending in strong terms the adoption of an American-style fair use law in Australian copyright.\u00a0 The report from the Australian Productivity Commission <\/a>addressed directly the numerous arguments against fair use, and endorsed the role of fair use as a means for infusing the law with flexibility and supporting the evolution of business markets and economic conditions.<\/p>\n

The Continuing Evolution of Fair Use<\/strong><\/p>\n

Fair use can be understood in many ways, and it will always be many different things simultaneously.\u00a0 As we strive to give the law a fresh meaning we are doing exactly what fair use was intended to do: \u00a0Serve as a flexible doctrine, adaptable to new and changing needs.\u00a0 Fair use adapts fundamentally by allowing new uses of new works and by functioning in a context of rapidly changing needs and technologies.\u00a0 Fair use must also be understood in yet other ways.\u00a0 In the hands of the public, it is a tool for advancing education and more, but it is also a manifestation of legal risks and policy positions.<\/p>\n

Despite the challenges of fair use, it is a welcome addition to the law of a growing list of countries.\u00a0 Fair use fulfills conceptual and practical needs, and it has become a hallmark of a copyright law that truly serves the purpose of advancing knowledge and creativity.<\/p>\n

Kenneth D. Crews is the author of numerous publications on copyright, including <\/em>Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions<\/a> (<\/em>4th ed., forthcoming 2017).\u00a0 He served on the faculty and established copyright policy offices at Columbia University and at Indiana University.\u00a0 He has given copyright presentations in nearly every U.S. state and in about 30 foreign countries.\u00a0 Dr. Crews is based in Los Angeles with the firm of<\/em> Gipson Hoffman & Pancione<\/a>.<\/em><\/p>\n

Disclosure: He testified as an expert witness in the mentioned Georgia State University case, and he met with the Australian commission as it considered its recommendations on fair use.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Coming to New Terms with Fair Use by Kenneth D. Crews One of the virtues of the passage of time is that you get to see a lot of stuff happen and change.\u00a0 Having spent much of my career on fair use, I have seen many perspectives and takes on this vital copyright doctrine.\u00a0 It […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[257,690,138871],"tags":[],"class_list":["post-246","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use","category-fair-use-week"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-3Y","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/246","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/users\/6259"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/comments?post=246"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/246\/revisions"}],"predecessor-version":[{"id":247,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/246\/revisions\/247"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=246"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=246"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=246"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}