Talking Fair Use - Pat Aufderheide's Q&A on Techdirt

 On Friday, June 8th, Techdirt hosted a live Q&A discussion with Pat Aufderheide on fair use. The conversation covered topics ranging from Codes of Best Practices and Pat Aufderheide and Peter Jaszi's new book, Reclaiming Fair Use, to South Park and DMCA Exemptions. We've included some excerpts of Pat's responses below. To read the full conversation, click here.

On the importance of Codes of Best Practices:

People have asked why codes of best practices in fair use, now designed by ten very different kinds of culture-makers in the US, and comprising large groups (e.g. librarians; teachers; filmmakers) are important or necessary. They are important because they are a way of permitting quicker, easier, of-greater-comfort fair use decision-making, given that fair use is deliberately quite vague in the law (so that each kind of user can fill its general mandate to use what you need to create new culture). They are necessary because now everything pretty much is copyrighted which means that you need to know and own your fair use rights in order to make most kinds of new culture.

On the impact of the Codes:

The impact has been impressive. Probably the single quickest way to grasp the change is to note this: Documentary filmmakers need errors and omissions insurance in order to get their films on the air. For two decades, these insurers flatly refused to insure against fair use claims. Within a year of the documentary filmamkers' statement coming out, every single insurer in the US accepted fair use claims within the terms of the Statement. A variety of other success stories are here: http://centerforsocialmedia.org/libraries/articles/success-of-codes

On the response to Reclaiming Fair Use:

The book has now sold out two printings, been assigned in courses, and has received the highest praise in reviews in popular and academic publications. We anticipate continued interest in the book, because everyone wants to be a cultural creator and actor in the world, not merely a consumer of stuff. We were thrilled to see the Visual Resources Association--a group of artists and art teachers--create a code of best practices on their own, without our facilitation, and one that also is grounded both in community practice and in the importance of the transformative logic.
We are working with journalists, through the Society of Professional Journalists, to create a set of principles in journalistic fair use. We have seen dramatic action by librarians as a result of January's release of their Code. The Georgia State University decision, which was made on very different grounds than the code (ignoring for instance transformative logic and setting numerical limits on fair use), has caused some to ask questions about the differences between the code and the GSU decision. Brandon Butler at ARL wrote an elegant brief that helps librarians make reasoned decisions: http://www.arl.org/bm~doc/gsu_issuebrief_15may12.pdf

On what's next for fair use:

What I would love to see is:--for codes of best practices to become routine standards-and-practices processes and documents in organized fields of practice. People do this for a myriad of other things, including how to use the office copier, for pity's sake. --for people in amorphous communities (e.g. all of us who occasionally post some video to the web) to grasp, whether through analogy with formal codes (this has been very effective in video circles, where they can look to documentary practice without being commercial documnetarians) the basic transformative logic of fair use, and employ it. --for people to stop trashing fair use as unuseable and try it out and then tell other people that they're using it. One of the problems we have had is with some of the most vigorous users of fair use deciding to hide their practices; that means they get helped by their use of their rights but no one else knows or can learn from their practice. --for people to stop scaring themselves and others with horror stories that they haven't investigated. For instance, in the book we have a profile on the real Tom Forsythe saga (barbecued Barbies), which is quite a fair use success story. Or maybe what we need is counter-mythology! (No, block that thought. We really have enough mythology.)