{"id":79,"date":"2014-02-26T14:45:25","date_gmt":"2014-02-26T14:45:25","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/copyrightosc\/?p=79"},"modified":"2014-02-26T14:45:25","modified_gmt":"2014-02-26T14:45:25","slug":"fair-use-week-day-three-with-guest-expert-kenneth-d-crews","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2014\/02\/26\/fair-use-week-day-three-with-guest-expert-kenneth-d-crews\/","title":{"rendered":"Fair Use Week: Day Three With Guest Expert Kenneth D. Crews"},"content":{"rendered":"

For our third expert post this week, we are delighted to\u00a0welcome\u00a0Kenneth D. Crews.\u00a0 Crews is an internationally recognized expert on copyright, libraries, and fair use.\u00a0 He is currently Of Counsel to\u00a0<\/em>Gipson Hoffman & Pancione<\/em>\u00a0in Los Angeles, California, and an adjunct professor in the Columbia Law School in New York.<\/em><\/em><\/p>\n

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The Expanding Importance of Fair Use: Virtues and Dimensions for Future Needs<\/strong><\/h3>\n

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It seemed common not long ago for some critics to predict the demise of fair use.\u00a0 Fair use was reviled as obsolete.\u00a0 It was hopelessly obtuse and reserved for scoundrels who needed a last resort for salvation from infringement claims.\u00a0 Even its advocates foresaw a dwindling role for fair use as licensing and pay-per-use mechanisms would become more prevalent. Balderdash<\/a>.<\/p>\n

The doctrine has never been as strong, versatile, and essential as it is today.\u00a0 Fair use is of greater importance now than ever before.\u00a0 It is a mainstay of creativity, and it is called upon by artists, publishers, Internet services, and players from a multitude of industries and perspectives.\u00a0 Fair use has been at the center of debates involving derivative artworks, classroom readings, and mass digitization of millions of books.\u00a0 In cases before U.S. courts in recent years, fair use has been asserted by creative artists and attacked by others.\u00a0 Fair use has been claimed by publishers developing new books, and asserted by educators to share portions of copyrighted books for education.\u00a0 Fair use has been preserved as a legal strategy when needed, and it has been deployed as a business model for creative industries.<\/p>\n

Fair use, of course, always has been a legal principle, and it is built on an interpretation and application of the four factors in the statute<\/a>.\u00a0 Two very general developments are happening on that foundation: First, the law is being called upon to serve a wider variety of needs and circumstances; second, the resulting legal experiments with fair use are opening some welcome creative and economic opportunities with widespread benefits.<\/p>\n

The escalating significance of fair use can be measured in multiple dimensions, from the legal definition to geographic outreach.<\/p>\n

Geography<\/strong><\/p>\n

Fair use is a distinctly American doctrine in many respects.\u00a0 It has some distant roots in British law, but it was coalesced in rulings from U.S. courts, starting in 1841<\/a>\u00a0[PDF].\u00a0 It became part of the U.S. copyright statutes in 1976.\u00a0 While nearly every country has copyright exceptions of some form, fair use remained exclusively in the U.S. domain until just the last several years.\u00a0 Other countries have discovered the compelling virtue of a flexible doctrine to serve unanticipated needs.\u00a0 Occasionally, non-U.S. courts have devised creative doctrines, but those countries still lack the true benefits of fair use.\u00a0 In recent years, several countries actually have introduced a four-factor test that is nearly identical to the American statute.\u00a0 Fair use and similar doctrines are finding a home outside the United States in the laws of countries such as Israel, Korea, Singapore, and the Philippines (see Library Copyright Alliance, \u201cHow Flexibility Supports the Goals of Copyright Law: Fair Use and the US Library Experience<\/a>\u201d [PDF] p. 15)<\/p>\n

Scope of Works and Media<\/strong><\/p>\n

Fair use never has been limited to certain types of works, but the early cases were typically about books and occasionally music.\u00a0 New waves of cases have tested fair use for art, photography, advertising, motion pictures, and even Barbie dolls<\/a>.\u00a0 Cases have begun to define the parameters of fair use for digital technologies, software, databases, search engines, and much more.<\/p>\n

Flexibility<\/strong><\/p>\n

Fair use also never has been limited to certain contexts.\u00a0 It has substantive limits, but no boundaries of circumstance.\u00a0 Fair use is ready to be tested as new technologies, new media, and new demands arise.\u00a0 As the challenge of orphan works and mass digitization expand, fair use is ready as a resource for potentially alleviating some of the legal tension.\u00a0 Fair use may not be the panacea, but it will always have a place in solving new copyright dilemmas and assuaging the interface between protection and innovation.<\/p>\n

Relationship to other exceptions<\/strong><\/p>\n

A mainstay virtue of fair use is its independence of the other copyright exceptions.\u00a0 The U.S. Copyright Act has more than fifteen statutory provisions<\/a> that detail specific exceptions.\u00a0 Regardless, fair use still applies.\u00a0 If the provision on distance learning (Section 110(2)<\/a>), for example, does not fit your needs, you still have the opportunity to test whether fair use might help.\u00a0 Fair use is a separate and independent element of the overall equation in copyright that establishes rights of owners and tempers them with limits.\u00a0 The same could be said about defining the public domain or simply seeking permissions from rightsholders.\u00a0 Fair use is one of the alternatives for properly using works created by others.<\/p>\n

Support for Creativity<\/strong><\/p>\n

Fair use may be a limit on the rights of copyright owners, but it is a critical boost for innovation and creativity.\u00a0 It enables the next generation of talent to utilize and build on the creative works that came before.\u00a0 It empowers each of us with an opportunity and a responsibility to engage with copyrighted works in a reasonable manner that may ultimately have social benefit.\u00a0 New artwork can be built on existing materials.\u00a0 Critical studies of film, painting, and literature can reproduce quotations and images to convey new insights.\u00a0 Digitized text can be used to engage students in the classroom, to build search tools, and to reach readers with diverse forms of print disabilities.<\/p>\n

Establishment of a Business Model<\/strong><\/p>\n

Fair use as a legal principle is conventionally cited as a defense.\u00a0 But it is increasingly a basis for business modeling and strategic planning long before a legal challenge can arise.\u00a0 Musicians are deciding (OK, probably with their lawyers in the room) whether to release a song that samples or derives from another.\u00a0 Artists are routinely building on the works of others.\u00a0 Book and newspaper publishers regularly decide whether to reproduce photographs and quotations.\u00a0 Software developers rely on existing code.\u00a0 Universities and libraries design and implement services for education and research based on policy planning about fair use.\u00a0 Some of the largest companies in the world develop innovative search tools and other online services that inherently depend on a strategically constructed definition of fair use.\u00a0 Whether the ultimate objective is cultural growth, scholarly research, or corporate profit, the strategy is the same: Is this activity within our best understanding of fair use, and are we prepared to move forward with our model and strategy despite potential conflict from the legal ecosystem?<\/p>\n

Filling Volumes
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\nWritings about fair use today fill volumes.\u00a0 That fact alone is a testament to the growing significance of fair use.\u00a0 It is a compelling doctrine.\u00a0 It is a source of rich debate and wondrous versatility.\u00a0 It remains viewed as grounds for theft and a foundation for innovation.\u00a0 One can also debate whether some of the newest court ruling actually have expanded or contracted the scope of the law.\u00a0 Regardless, the latest developments at home and abroad are underscoring that fair use is, or always has been, ready to find meaning for new uses, new media, and new plans and models.\u00a0 Even if fair use is fundamentally unchanged, it simply has found new prominence as the entire system of copyright law expands to reach new horizons of possibilities.<\/p>\n

Kenneth D. Crews is Of Counsel to <\/em>Gipson Hoffman & Pancione<\/em><\/a> in Los Angeles, California, and is an adjunct professor in the Columbia Law School in New York.\u00a0 He is the author of<\/em> Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions<\/em> (3rd<\/sup> edition, 2012)<\/a>.\u00a0 The views expressed here are his own. \u00a0You can contact him at kcrews107@outlook.com and on Twitter<\/a>.<\/em><\/p>\n

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

For our third expert post this week, we are delighted to\u00a0welcome\u00a0Kenneth D. Crews.\u00a0 Crews is an internationally recognized expert on copyright, libraries, and fair use.\u00a0 He is currently Of Counsel to\u00a0Gipson Hoffman & Pancione\u00a0in Los Angeles, California, and an adjunct professor in the Columbia Law School in New York.   The Expanding Importance of Fair […]<\/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":false,"_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":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[257,690],"tags":[],"class_list":["post-79","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7gxeS-1h","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/79","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=79"}],"version-history":[{"count":7,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/79\/revisions"}],"predecessor-version":[{"id":86,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/posts\/79\/revisions\/86"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/media?parent=79"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/categories?post=79"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/wp-json\/wp\/v2\/tags?post=79"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}