{"id":248,"date":"2017-02-21T05:22:24","date_gmt":"2017-02-21T05:22:24","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=248"},"modified":"2017-02-24T01:52:45","modified_gmt":"2017-02-24T01:52:45","slug":"fair-use-week-2017-day-two-with-guest-expert-brandon-butler","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2017\/02\/21\/fair-use-week-2017-day-two-with-guest-expert-brandon-butler\/","title":{"rendered":"Fair Use Week 2017: Day Two With Guest Expert Brandon Butler"},"content":{"rendered":"

\"FUW<\/strong><\/h2>\n

Fair Use and Open Access: Two Great Tastes That Taste Great Together<\/strong><\/h2>\n

by Brandon Butler<\/strong><\/p>\n

Fair use and open access are two crucial tools that serve the same core purpose: making information maximally available and useful without running afoul of copyright law. A comprehensive strategy for increasing access to knowledge has to bring both tools to bear (at least in\u00a0countries where fair use or something like it is available<\/a>).<\/p>\n

And yet, it is a tempting rhetorical strategy to deprecate fair use as part of the argument for open access, or for copyright reform generally. Fair use, we are sometimes told, is too weak, too uncertain, too risky, so we must turn to open access\/open licensing as the one true path to unlocking knowledge. Lawrence Lessig may be the most common source for the view,\u00a0articulated<\/a>\u00a0in his book\u00a0Free Culture<\/em>, that \u201cfair use in America simply means the right to hire a lawyer.\u201d<\/p>\n

Fair Use Week<\/a>\u00a0itself is evidence that Lessig\u2019s clever put-down has not worn well over time; fair use is more-and-more understood as a reliable First Amendment right that powers the\u00a0HathiTrust<\/a>,\u00a0South Park<\/a>, and\u00a0This Charming Charlie<\/a>\u00a0with equal aplomb. Fair use will not generally allow levels of access and use that are as wide open and unambiguous as open access, but fair use is still a crucial\u2014and\u00a0reliable<\/em>\u2014part of the legal protections for libraries and our users.<\/p>\n

\"fuw1\"<\/p>\n

Once that political misconception is cleared away, however, we still have to address the tricky legal questions that arise when fair use and open access are mixed together in practice. One of the trickiest is whether the author of an article published under an open license like CC-BY may incorporate portions of others\u2019 works into her new CC-licensed work under fair use, as she would if she published in a traditional way? Kevin Smith actually\u00a0addressed this issue<\/a>\u00a0a few years ago, observing that the CC-BY license itself holds the key:<\/p>\n

Licensors should clearly mark any material not subject to the license. This includes other CC-licensed material, or material used under an exception or limitation to copyright.<\/p><\/blockquote>\n

Yes, in other words, of course you can, and the license tells you how. Because a CC license creates certain expectations in users (namely, that they can reuse any or all of the work under the terms of the license), you should be sure to manage those expectations and help users make smart choices.
\n\"ccby\"<\/p>\n

Users, by the same token, will need to be familiar with fair use generally in order to determine whether and how the doctrine will continue to shield downstream uses of these \u201cmixed\u201d openly-licensed works.<\/p>\n

\"open_access\"<\/p>\n

So, for the foreseeable future, fair use and open access will be two great tastes that taste great together. Fair use will be a vital right for as long as we want to comment on, critique, and otherwise engage with the vast majority of culture. Open access will be the best way to ensure that the next generation of discoveries ideas have maximum impact. And when new ideas, aesthetics, and insights build (as they so often do) on the works of the past, and are published with an open license, well, that\u2019s the best of both worlds.<\/p>\n

 <\/p>\n

Brandon Butler<\/a>\u00a0is Director of Information Policy at University of Virginia. \u00a0There he works on\u00a0implementing programs to guide the University Library on issues of intellectual property, copyright, and rights management for scholarly materials. Before that, Brandon was Director of Public Policy Initiatives at ARL from 2009 to 2013.<\/em><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Fair Use and Open Access: Two Great Tastes That Taste Great Together by Brandon Butler Fair use and open access are two crucial tools that serve the same core purpose: making information maximally available and useful without running afoul of copyright law. A comprehensive strategy for increasing access to knowledge has to bring both tools […]<\/p>\n","protected":false},"author":6259,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_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}},"categories":[257,690],"tags":[138871],"class_list":["post-248","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use","tag-fair-use-week"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-40","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/248","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=248"}],"version-history":[{"count":4,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/248\/revisions"}],"predecessor-version":[{"id":270,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/248\/revisions\/270"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=248"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=248"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=248"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}