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Defending fair use
As the debates about the incompatibility of open licenses rage on, it brings home to me again how they are really just a stop gap while the real battle is on carving out space for meaningful fair use and limiting copyright terms. The Wall Street Journal carries this account of how Google and others are pushing back against content producers’ attempts to limit fair use of their content. Here, the article discusses the infringement warnings at the beginning of books, movies and run during broadcasted sports events:
Many warnings “materially misrepresent U.S. copyright law, particularly the fundamental built-in First Amendment accommodations which serve to safeguard the public interest,” the complaint alleges. CCIA President Ed Black said the warnings create a “chilling effect,” dissuading consumers from using portions of the content in ways that are lawful.
The conflict illustrates the shifting concept of fair use in the digital age. “Fair use” of intellectual property revolves around the question of how much, if any, of movies, books, music and other creations can be used without permission of the owners. As Internet platforms have made it easier to redistribute chunks of content without asking for approval, copyright owners have become more protective about enforcing their rights.
With robust fair use, open education would rely less on open licenses. The good news here is that many of the most ferocious defenders of long copyright terms and narrow fair use are also business models that are dying painful deaths at the hands of other forces in the digital era, so I have hope that eventually companies with interest in less copyright protection (such as Google) will begin to hold sway over the old line media on these issues. (via Open Access News)
August 5th, 2007 at 9:01 am
That link wasn’t to a discussion about license incompatibility so much as it was making a point that licenses are all, technically speaking, unfree. It was criticizing WikiEducator for referring to its content as completely free when, not being in the public domain, it isn’t.
But your point about fair use is spot on, and something that the open education movement hasn’t discussed nearly enough. There’s still a fear about the gray areas of fair use that keeps educators from taking advantage of it. That’s especially bad because one thing that courts use to decide whether use is fair use is whether that use is standard in the community.
Documentary filmmakers have addressed this by developing a Statement of Best Practices in Fair Use:
http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/
Because it comes from the community, it’s expected to carry a great deal of weight in the courts.
Perhaps it’s time for organizations that represent educators to come together to draft a statement of best practices in fair use for our community?
August 5th, 2007 at 7:19 pm
Fair enough. I meant to point to this earlier post.
I’ve seen the documentary filmmakers Statement before, and I do think it’s a direction the open education world may go eventually, especially since this document seems to be effective for documentary filmmakers.