A September conference at the Program on Information Justice and Intellectual Property at American University’s Washington College of Law (WCL) featured a look back at the remarkable change over the last decade in fair use practices, as a result of a strategy led by Peter Jaszi, in which the Center has been proud to play a part.
For a decade, and with help from funders such as the John D. and Catherine T. MacArthur Foundation, Rockefeller Foundation, McCormick Foundation, and Mellon Foundation, among others, Peter Jaszi and I have been working with creators of all kinds—filmmakers, journalists, librarians, media literacy teachers, open courseware designers, visual arts professionals and more—to create codes of best practices in fair use tailored to the most common situations where fair use questions arise in each community.
The change has been remarkable. In some cases—for most documentary filmmakers, for example—industry-wide policy has been reversed. Sometimes change has occurred almost immediately. In other cases, leading institutions have instituted change that then reverberates.
The notion that a non-legal advice document such as a code of best practices could have such a big effect on practices with legal risk was unlikely when the project began, and to some still seems unlikely. But conference speakers demonstrated its power.
How it all began.
Jaszi recalled the inspiration he found by reading an influential law review article by Michael Madison. Madison was on hand to explain a key relevant insight—that courts do take into consideration practices of a field in interpreting a particular case of fair use. This makes it important to consider cultural context in interpreting legal decisions, especially one about creating culture (as fair use is always involved in doing). Madison’s insights explained why it would be important to articulate best practices and why they would have influence in judicial decision-making.
“It’s exciting to see my research built into a modern-age law reform, giving agency to people whose rights and stakes are on the front lines,” said Madison. “They are taking control of fair use as a collective, on a robust basis.”
What a difference it makes.
From RetroReport, which produces segments for the New York Times providing context to today’s news, Kyra Darnton explained that the way they do their work would be impossible without the Documentary Filmmakers’ Statement of Best Practices in Fair Use. “It makes our films better, it sharpens our argument. Bringing context and perspective to the news is intertwined with the fair use doctrine.”
"We’ve made 61 films, there’s not one where we had a strong argument to make that we couldn’t make because of copyright problems, thanks to fair use.”
UCLA’s archivist Heather Briston has integrated librarians’ best practices into digital collections policy. “We want to encourage inquiry, we want our students and professors to have access, to browse, to get an idea,” she said. For that, getting material digitized and available is a sine qua non. “We’ve had digital projects in eight or nine collections in the last 18 months. And tool like the Association of Research Libraries’ best practices is crucial. Our copy is underlined everywhere.” One example: The Los Angeles Aqueduct Digital Platform, which stimulates discussion of California’s most precious resource with rich archival resources available to all.
Scaleable and spreadable.
She pointed out that the Code makes issues of fair use scaleable, by allowing people to learn the reasoning behind common and repeated decisions. UCLA graduate students are trained using the Code. “We have created a group of potential scholars, young digital arts and design students with a greater understanding of copyright in their work, and the role of fair use. It has releasing them to respect the value of our mission, and from the fear of being sued.”
The Code has also been good for librarians who need to begin a conversation with a hesitant or unfamiliar general counsel. “This allows the archivists and librarians to have talking points. It allows people to have conversations in a reasoned matter and focusing on the educational mission.”
Publishing with fair use.
Rachelle Browne, the Smithsonian’s associate general counsel, discussed how frustrated authors of Smithsonian publications have been at the terms of permission by many estates and brokering services—frustrations that end up in delays, changes and even cancelled projects. Historically, the Smithsonian, like many academic publishers, has expected all images used to be used only with permission. As well, the Smithsonian has faced headaches in the attempt to digitize back issues of scholarly journals.
But the College Art Association’s Code of Best Practices in Fair Use for the Visual Arts, released last February, has triggered a rethink, particularly after the College Art Association itself changed its authors’ contracts.
“As a result, we’re going to modify our own contributors’ contracts, to make a fair use analysis possible,” she said. “We’ll help contributors make a fair use determination by putting on website some guidelines, and possibly a link to CAA’s Code.” In the future, the contracts will specifically encourage contributors to consider fair use.
Rights and balance.
For me, perhaps most interesting has been the stunning emotional trajectory I have almost universally seen in the communities we have been so fortunate to work with. Time after time, I have watched people first be wary of our project, depressed at their current straits but afraid to rock the boat or get in trouble. Then, after understanding the depth of self-censorship involved in misunderstanding the law, people often get angry—at themselves as well as at others. They want someone to fix this problem for them, and often it is hard to come to the realization that they must do it themselves, with each other.
But the deliberative process by which members of a community meet with each other to discuss what are its best practices for fair use under the law is often an exhilarating time. Sometimes it is the first time members of the community have reflected on the deeper goals of their community’s practices. People come to see what they do with pride, as a contribution to the culture—just as the law sees what they do.
And finally, they are no longer depressed, or angry, but confident and self-aware. Their coming to an awareness of their limited rights to use copyrighted material is an access of agency—an ability to act that they didn’t know they had. And that awareness matches their at least equal concern that their own copyright owners’ rights be recognized. They come to a rights-based understanding of copyright balance that sits squarely with the law—and that makes them not only confident creators, but mentors and active defenders of their rights.
Community and individual.
The process itself has reinforced the strength of the Codes, said Heather Briston: "It’s about the community. I got to participate in both the orphan works and library process. There’s nothing like those small groups where you start talking about scenarios. No one had ever asked us what we think is fair. There’s peer learning going on. Archivists can tell other archivists things we wouldn’t necessarily hear from a lawyer. The Code then has the backing and review of lawyers, but in the end it’s about the community."
Madison noted that community matters not only to the law but also in terms of taking the next step. The success of the codes of best practices has been rooted not in a general celebration of “remix culture” but in specifics.
“Sometimes we abstract community and culture to our detriment," he said. "If we make the case that everybody is a creator because everyone has a smartphone, it doesn’t have the same rhetorical power as pointing to the Harry Potter Alliance. Today we saw that communities have character, place, and content, and we need to get into those details. That’s an important lesson to carry forward to the next phase.”
A complete livestream of the event is available here.