I know that there is a wide divergence of opinions on what constitutes fair use.
I understand that many would like to stretch what is included in fair use or even do away with copyright altogether. I’m not unfriendly to those viewpoints, but I don’t think that in my sometimes role of providing information about copyright (and of course, open content) that that is the right viewpoint for me to espouse. We can all read the text of the law. Saying it should say something else is fine. Saying it does say something else seems unhelpful.
Perhaps because I am a rules-oriented type of girl, I tend to have a fairly literal interpretation. I stand by my assertion that most folks interpretation of fair use is much broader than what the law itself says. Some (well, at least one) have accused me of misinformation. While I don’t agree with that characterization, I am keenly interested in being accurate.
So, as I write a new piece on open content, I’d like some feedback to make sure I am being fair and accurate on this issue. I look forward to a spirited discussion. :)
[excerpt – DRAFT for comment]
There’s an endless supply of free content on the Internet. How is open different from everything else that is free? In the United States, any content that is not public domain (by virtue of its age or designation as such by the creator) is copyrighted, whether or not it is indicated as such. Generally, in order to reuse or redistribute copyrighted content, you must obtain the creator’s permission.*
…
* The exception to this is the murky area of fair use. While the purpose and character of use (e.g. nonprofit, educational) is one consideration, the law also considers the nature of the work (e.g. parody), the amount and substantiality of the use, and the effect of the use on the potential market use. Various organizations have translated this ambiguous language into defined ranges of acceptable use, but the law itself is gray. As derivative works are often being shared on the Internet (and leaving the classroom walls), fair use becomes less clear.
The point of this discussion is not to promote any particular interpretation of fair use, but to discuss alternatives to it, namely, open content.
Karen:
In reading your draft, my primary suggestion would be to use more of the specific language from the law regarding the various purposes that are the strongest claims of fair use, while simplifying the listing of the factors that are determiners.
So here are a couple of suggestions. In your note you might have something like, criticism, comment, news reporting, teaching, scholarship, and research are purposes of use that offer a broader claim to fair use. Then perhaps a simplified list of the factors like, nature of copyrighted work, as well as the purpose, amount, and effect of the use are considerations for making a fair use claim.
Also, I am not sure that fair use is so much unclear as it is flexible and deliberately subject to some interpretation, which can be certainly be intimidating and seem unclear given the potential ramifications of a poor claim. I like your use of the term “gray” a lot more than “unclear.”
Additionally, your final sentence in the main paragraph is arguably stronger than the actual wording of the copyright office. You use the phrase “must obtain permission” but office page to which you link says “the safest course is always to get permission.”
Cheers,
Fred
Hi Karen:
I also like the use of the descriptor “gray.” Fair Use is by definition flexible and situational at best. I’m fairly concrete, so I do default to the four part “test” for fair use in thinking about using and sharing. I like the Columbia U Libraries page, particularly because it relates fair use in an online course environment. http://copyright.columbia.edu/copyright/fair-use/practical-applications/posting-course-materials-online/#coursematerials5
The recent US District court decision on fair use in e-reserves is also very interesting in relation to new interpretations of fair use in academic settings. Cambridge University Press et al. v. Patton et al.
http://chronicle.com/article/Long-Awaited-Ruling-in/131859/
I like this statement from another article on the case that precedes the decision:
“The guidelines themselves demanded flexibility. And fair use itself is legislated to be flexible, exercised on a case-by-case basis.” http://chronicle.com/article/Whats-at-Stake-in-the-Georgia/127718/