{"id":485,"date":"2022-02-24T05:15:03","date_gmt":"2022-02-24T05:15:03","guid":{"rendered":"http:\/\/blogs.harvard.edu\/copyrightosc\/?p=485"},"modified":"2022-02-24T05:16:11","modified_gmt":"2022-02-24T05:16:11","slug":"fair-use-week-2022-day-four-with-guest-expert-dave-hansen","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2022\/02\/24\/fair-use-week-2022-day-four-with-guest-expert-dave-hansen\/","title":{"rendered":"Fair Use Week 2022: Day Four With Guest Expert Dave Hansen"},"content":{"rendered":"

I am excited to welcome Dave Hansen to our Fair Use Week blog post series, as he examines and celebrates the functional and mundane aspects\u00a0of fair use!\u00a0<\/em>\u2013 Kyle K. Courtney<\/em><\/p>\n

\"\"<\/p>\n

Fair Use is Boring<\/b><\/h2>\n

by Dave Hansen<\/p>\n

\u201cWe live in interesting times\u201d is a statement I\u2019d prefer to not hear again. Over the last couple of years we have faced protests, insurrections, pandemic, fires, wars and so on. And in addition to those real life problems, the law has struggled to adapt. Rules that were once thought reasonable no longer made sense. We needed flexibility that hasn\u2019t always been there. However, one bright spot has been how copyright law has for the most part navigated these emergencies successfully, largely due to the power of fair use.\u00a0<\/span><\/p>\n

Described as an \u201cequitable rule of reason,\u201d\u00a0 fair use aims to\u00a0 \u201cavoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.\u201d Fair use, for example, is the reason teachers and librarians have felt empowered to continue helping their students learn <\/span>by reading aloud to them<\/span><\/a> (gasp!) online, even though strictly speaking such uses may, strictly speaking, be considered an exercise of the copyright owner\u2019s public performance rights. It has also <\/span>helped make other uses supporting teaching, learning possible<\/span><\/a>, by allowing instructors to share excerpts of books, or clips of movies, with students through class websites. Those kinds of uses illustrate the elegance and speed with which fair use allows us to adapt to emergencies to keep teaching and learning, and ultimately creativity, moving forward.<\/span><\/p>\n

Of course,\u00a0 sometimes that \u201cequitable rule of reason\u201d means that we can have disagreements about what qualifies as fair use, especially in new circumstances. This is true with cases <\/span>like with the National Emergency Library and the copyright lawsuit that it perpetuated<\/span><\/a>. That lawsuit challenges whether and how libraries, like Internet Archive, can provide digital access to digitized books in times when physical analogs can\u2019t be accessed. Reasonable minds can differ about what circumstances make that permissible, hence the lawsuit.\u00a0 But even then, fair use helps us, by giving enough legal flexibility in the system to invite organizations like Internet Archive that are willing to take a risk and make the argument, and then allowing for a reasoned resolution of the issue by the courts. That\u2019s a feature, not a bug. Without it we may foreclose all sorts of new ways of promoting learning and progress for fear of an otherwise stifling, stiff copyright system.\u00a0<\/span><\/p>\n

But, I\u2019m tired of emergencies. So I want to close out Fair Use Week by asking you to celebrate with me how fair use can be pretty boring, too.\u00a0 Although we sometimes talk about fair use as an \u201cexception,\u201d in reality it’s\u2019 not some special aberration from the norm; fair use is baked into the balance of the Copyright Act, as it is in all sorts of everyday activity. These uncelebrated, boring aspects of fair use are an important part of what makes it so powerful. \u201cEquitable rules of reason\u201d only really work when they match what most of us view as actually being reasonable. We use it all the time:*<\/span><\/p>\n