Fair Use Awakens...
Published on Nov 18, 2015
This deck accompanies our panel proposal for SXSWEDU 2016; we hope to support attendees who wish to inspire and educate students by incorporating follow-on works, fanfiction, fanart and other creatively educational experiences that exist because fair use is a lawful use of copyright.
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PRESENTATION OUTLINE
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Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
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Also, the design of boat hulls!
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- Not ideas
- Not brand names
- (Sometimes logos)
- Not a single note or chord
- Not effort or "sweat of the brow"
- Not something old enough to be in the public domain
Facts Are Not Copyrightable.
A person's actual face is not protectable by copyright.
(But it might be a trademark.)
Franklin Mint Corp. v. Nat’l Wildlife Art Exch., Inc., 575 F.2d 62, 65 (3d Cir. 1978).
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But if a work draws on prior creations, the copyright protection only covers what is new and original.
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Copyright terms have grown...
The public domain
seems far away...
New works enter the public domain every Jan. 1.
Many policies & rules are
out of date
Columbia University's publicly accessible Fair Use checklist hasn't been revised since 2008. It predates cases like Google Books, Cariou v Prince, the "Jersey Boys" case and so much more. https://copyright.columbia.edu/content/dam/copyright/Precedent%20Docs/fairu...
Villanova directs students and professors to a Copyright Management Center at Purdue that hasn't existed in years, and hasn't updated its Fair Use Check list in almost a decade.
The page at http://www.copyright.com/Services/copyrightoncampus/basics/fairuse_list.htm... that is supposedly education-focused is also from 2008.
When were your fair use policies updated? Are you relying on explanations from almost a decade ago?
Villanova directs students and professors to a Copyright Management Center at Purdue that hasn't existed in years, and hasn't updated its Fair Use Check list in almost a decade.
The page at http://www.copyright.com/Services/copyrightoncampus/basics/fairuse_list.htm... that is supposedly education-focused is also from 2008.
When were your fair use policies updated? Are you relying on explanations from almost a decade ago?
Copyright Office Exemptions
OTW requests expansions under the DMCA
Some believe it is fundamentally broken; corporations believe that the every-three-years renewal process makes it difficult for them to create multi-year forward-thinking business plans.
https://www.eff.org/issues/dmca-rulemaking
https://www.eff.org/issues/dmca-rulemaking
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Fair Use is not:
- Plagiarism
- Unethical
- Infringement
- Uncreative
- File sharing on publicly accessible sites
- A rigid and unchanging checklist
- Shrinking (at the moment)
- An exception to copyright
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It's set out in U.S. law.
Fair use is a lawful use of copyright.
"On the Road" will be copyrighted in the US until 2053 unless copyright terms shrink. That's very unlikely.
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Four Factors
- Purpose & Character of Follow-On Use (and what is a commercial use?)
- Nature of the Copyrighted Work
- Amount and Substantiality of Portion Used vs Work as a Whole
- Effect of the Use on Potential Market For or Value Of Copyrighted Work
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A transformative work shifts the context from the purpose the source work was created for, to a different purpose or meaning in the follow-on work.
Bill Graham Archives, LLC v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
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Transformativeness in meaning provides necessary breathing room to artists reacting to the world around them. The world includes works protected by copyright.
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Fair Use
allows everyone an opportunity to engage with others' works in new and unex-
pected ways.
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But Statutory Penalties
are impractically high, if you're reasonable but wrong.
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Under the DMCA's "safe harbor" provisions, site policies & terms of use dictate how each online platform removes content - blog posts, videos and tweets - in response to copyright holder complaints.
However...
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Sites, ISPs, social media hosts & nonprofits have no (practical) way of knowing whether a particular use of a work is authorized by the rightsholder, or is used
legally, under fair use.
How to respond to a DMCA Takedown Notice:
http://heidi8.tumblr.com/post/111076144999/have-you-heard-about-the-tumblr-...
If a student gets a takedown notice on YouTube, Facebook or another site, the link above has instructions on how to "counter-notice" and hopefully have the content restored.
http://heidi8.tumblr.com/post/111076144999/have-you-heard-about-the-tumblr-...
If a student gets a takedown notice on YouTube, Facebook or another site, the link above has instructions on how to "counter-notice" and hopefully have the content restored.
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Fraudsters & manipulators take advantage of the imbalance by sowing fear.
How do you reply to an unfair
C&D demand?
http://artlawjournal.com/tips-responding-getty-images-demand-letter/
Use law schools as resources; clinics and professors are often able to help when fair use is being attacked by an unfair claim from a copyright holder.
Use law schools as resources; clinics and professors are often able to help when fair use is being attacked by an unfair claim from a copyright holder.
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Copyright encourages creativity and innovation,
when it preserves and promotes ample
breathing space
for unexpected and
innovative uses.
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Follow-On Works can counteract silencing and censorship. But it's risky.
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Are there safe harbors for follow-on works?
https://www.whitehouse.gov/blog/2015/10/19/openly-licensed-educational-reso... includes a discussion of how "openly licensed educational materials are being used to solve local education challenges around the world".
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What Content Are You Creating?
- Is there's an open-licensed version of the content you want to use?
- If so, how do you comply with the license? Credit? Linkbacks?
- Do licenses limit your "fair use" rights?
- What are you doing with your follow-on work? Selling one copy? Mass production? Display online?
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