Recent Scholarship on Fair Use

In the latest issue of Cinema Journal (Volume 52, Number 2, Winter 2013), Peter Decherney leads a conversation with three other scholars on academic writing on fair use since 1990.  Joining him are Bill Herman, Jessica Silbey, and Rebecca Tushnet who respond to this introductory provocation:

A new wave of books takes account of the post-1990 landscape of fair use and its impact on culture, business, and creativity. Kembrew McLeod and Peter DiCola's Creative License examines the mounting restrictions courts have placed on music sampling and the resulting transformation of hip-hop music.³ Patricia Aufderheide and Peter Jaszi's Reclaiming Fair Use chronicles and situates the movement they started to create fair-use best-practices documents.⁴ William Patry's How to Fix Copyright argues that fair use is an important engine for innovation and job creation that should be adopted beyond the United States.⁵Jason Mazzone's Copyfraud and Other Abuses of Intellectual Property Law details copyright holders' adeptness at claiming rights far in excess of those given to them by the law.⁶ And my own Hollywood's Copyright Wars argues that the Internet has homogenized fair-use communities that were once treated as distinct groups.⁷ Significantly, these are works by both media scholars and legal scholars, who are often collaborating on the same texts. Other projects, like the Organization for Transformative Works and its journal, also bring together lawyers and media scholars to think about fair use and its impact on culture. What do you think these books (and others) tell us about the changing character of fair use? And what are the implications for scholars, archivists, and media makers? --Peter Decherney

This article and the texts it mentions/addresses is good way to get up to speed on the current scholarly landscape of fair use. Cinema Journal is available from the Penn Libraries e-resources.

Center for Social Media (American University)

There are a lot of places to go to keep up on  fair use practice but American University's Center for Social Media is one  of the best. However, the Center has a wider purpose:

The site prides itself on being a resource to teachers and media/content makers/creators. One can find and download codes of best practices for Academic and Research Libraries, OpenCourseWare, Media Literacy Education, and Online Video; there's even a Code of Best Practices in Fair Use for Poetry. They also have a collection of Fair Use videos (ex. Did These Mashups Use 'Fair Use'? You Decide!; Fair Use in Documentary Film Discussion Clips; and Remix Culture).

The Center for Social Media showcases and analyzes media for public knowledge and action—media made by, for, and  with publics to address the problems that they share. We pay particular attention to the evolution of documentary film and video in a digital era. With research, public events, and convenings, we explore the fast-changing environment for public media. The Center was founded in 2001 by Patricia Aufderheide, University Professor in the School of Communication at American University.

If you are interested in making media that matters (i.e. propels viewers into action), documentary production and promotion, or media literacy/education in general this is a bookmark-worthy site.

Media Piracy in Emerging Economies

The Social Science Resource Council has just released the first independent, large-scale study of music, film and software piracy in emerging economies, focusing on Brazil, India, Russia, South Africa, Mexico and Bolivia.

Media Piracy in Emerging Economies is "based on three years of work by some thirty-five researchers [and]tells two overarching stories: one tracing the explosive growth of piracy as digital technologies became cheap and ubiquitous around the world, and another following the growth of industry lobbies that have reshaped laws and law enforcement around copyright protection. The report argues that these efforts have largely failed, and that the problem of piracy is better conceived as a failure of affordable access to media in legal markets."

Major Findings
* Prices are too high. High prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. Relative to local incomes in Brazil, Russia, or South Africa, the retail price of a CD, DVD, or copy of MS Office is five to ten times higher than in the US or Europe. Legal media markets are correspondingly tiny and underdeveloped.

* Competition is good. The chief predictor of low prices in legal media markets is the presence of strong domestic companies that compete for local audiences and consumers. In the developing world, where global film, music, and software companies dominate the market, such conditions are largely absent.

* Antipiracy education has failed. The authors find no significant stigma attached to piracy in any of the countries examined. Rather, piracy is part of the daily media practices of large and growing portions of the population.

* Changing the law is easy. Changing the practice is hard. Industry lobbies have been very successful at changing laws to criminalize these practices, but largely unsuccessful at getting governments to apply them. There is, the authors argue, no realistic way to reconcile mass enforcement and due process, especially in countries with severely overburdened legal systems.

* Criminals can’t compete with free. The study finds no systematic links between media piracy and organized crime or terrorism in any of the countries examined. Today, commercial pirates and transnational smugglers face the same dilemma as the legal industry: how to compete with free.

* Enforcement hasn’t worked. After a decade of ramped up enforcement, the authors can find no impact on the overall supply of pirated goods.

Code of Best Practices in Fair Use for Scholarly Research in Communication

The International Communication Association's Code of Best Practices in Fair Use for Scholarly Research in Communication, which is posted at the American University's Center for Social Media site (as well as it's own), identifies four situations that represent the current consensus within the community of communication scholars about acceptable practices for the fair use of copyrighted materials." The Center for Social Media is the place to go for fair use issues in education and media production. You can view videos on codes for best fair use practice in user-generated video, documentary film making, media literacy, and remix culture.

On the same front, just yesterday the Librarian of Congress announced the latest ruling on exemptions to the Digital Millennium Copyright Act, expanding fair use practice to include encrypted copyrighted works. Teachers, students and filmmakers can now break encryption to quote limited portions of copyrighted works into their own work or teaching.

Copyright and Creativity in Communication Research

Annenberg alumnus Bill Herman ('09, now teaching in the Film and Media Department at Hunter College), drafted the report of the Ad Hoc Committee on Fair Use and Academic Freedom of the International Communication Association titled: Clipping Our Own Wings: Copyright and Creativity in Communication Research. Way to go Committee, and especially our Bill!

EXECUTIVE SUMMARY

Communication scholars need access to copyrighted material, need to make unlicensed uses of them in order to do their research, and often—especially within the United States—have the legal right to do so. But all too often they find themselves thwarted.

A survey of communication scholars’ practices, conducted by the Ad Hoc Committee on Fair Use and Academic Freedom in the International Communication Association (ICA), reveals that copyright ignorance and misunderstanding hamper distribution of finished work, derail work in progress, and most seriously, lead communication researchers simply to avoid certain kinds of research altogether.

Nearly half the respondents express a lack of confidence about their copyright knowledge in relation to their research. Nearly a third avoided research subjects or questions and a full fifth abandoned research already under way because of copyright concerns. In addition, many ICA members have faced resistance from publishers, editors, and university administrators when seeking to include copyrighted works in their research. Scholars are sometimes forced to seek copyright holders’ permission to discuss or criticize copyrighted works. Such permission seeking puts copyright holders in a position to exercise veto power over the publication of research, especially research that deals with contemporary or popular media.

These results demonstrate that scholars in communication frequently encounter confusion, fear, and frustration around the unlicensed use of copyrighted material. These problems, driven largely by misinformation and gatekeeper conservatism, inhibit researchers’ ability both to conduct rigorous analyses and to develop creative methodologies for the digital age.

Communication scholars can benefit by developing best practices standards for the most ample and flexible copyright exemption permitting unlicensed use of copyrighted materials: fair use. While non-U.S. members will not be able to apply this doctrine directly to work done outside the United States, having this interpretation established for U.S. scholars will expand opportunities within a large area of communication research, encourage international scholars to explore their own nations’ copyright exemptions, and provide an important benchmark for non-U.S. scholars looking for models as copyright reform proceeds.

MICHIKO KAKUTANI on Mash-up Culture

An excellent review article on the mash-up culture of the web (with mention of at least a dozen related books) appeared in the March 21 Sunday New York Times.

Texts Without Context

By MICHIKO KAKUTANI

Published: March 21, 2010

How the Internet and mash-up culture change everything we know about reading.

These were some of the books were mentioned in the article:

REALITY HUNGER: A MANIFESTO
By David Shields
219 pages. Alfred A. Knopf. $24.95.

YOU ARE NOT A GADGET:
A Manifesto
By Jaron Lanier
209 pages. Alfred A. Knopf. $24.95.

THE SHALLOWS: WHAT THE INTERNET IS DOING TO OUR BRAINS
By Nicholas Carr
288 pages. W. W. Norton & Company. $26.95. (Scheduled for release in June.)

TRUE ENOUGH: LEARNING TO LIVE IN A POST-FACT SOCIETY
By Farhad Manjoo
250 pages. John Wiley & Sons. $25.95.

THE AGE OF AMERICAN UNREASON
By Susan Jacoby
357 pages. Vintage Books. $15.95.

INFOTOPIA: HOW MANY MINDS PRODUCE KNOWLEDGE
By Cass R. Sunstein
273 pages. Oxford University Press. $15.95.

GOING TO EXTREMES: HOW LIKE MINDS UNITE AND DIVIDE
By Cass R. Sunstein
199 pages. Oxford University Press. $21.95.

THE CULT OF THE AMATEUR
By Andrew Keen
256 pages. Doubleday. $14.00.

Society for Cinema and Media Studies Statement on Fair Use

The latest issue of the Society for Cinema and Media Studies' Cinema Journal carries a detailed explanation/interpretation of the Library of Congress' exemption allowing film and media studies professors to create digital clips from legally-obtained DVDs housed in college and university libraries. These may be used in the classroom or on electronic courseware sites as long as such activity is restricted to matriculaters and measures are taken to thwart copying and downloading of the material. The Society for Cinema and Media Studies’ Statement of Best Practices for Fair Use in Teaching for Film and Media Educators makes for a good reference for practitioners and librarians alike. The exemption lasts until Oct. 29, 2009, at which point it may be renewed.