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World's Fair Use Day

The Washington, D.C. public interest organization Public Knowledge hosted World’s Fair Use Day on Feb. 12, providing a much-needed focus on Fair Use as a key asset of copyright policy. For too long, chic chat on copyright has focused on the (all too real) creative stranglehold of “long and strong” copyright ownership, without featuring part of the solution: the highly flexible and adaptable doctrine of Fair Use. This lively day demonstrated that Fair Use has become a central part of copyright reform, and that a large part of that reform is within the grasp of anyone who wants to educate themselves about their rights.

Rep. Mike Doyle (D-PA) kicked off the day, having discovered the importance of Fair Use when he met a constituent—Gregg Michael Gillis, aka Girl Talk, the mashup musician. He’s become a staunch defender of Fair Use, which is under attack in secret (!) treaty negotiations--the Anti-Counterfeiting Trade Agreement (ACTA). Doyle called for openness and transparency.

The day featured several reminders of the Center’s work on codes of best practices in Fair Use. Video mashup artists Elisa Kreisinger and Jonathan McIntosh both referred to it, and so did Terri Bays, describing OpenCourseWare’s code of best practices in Fair Use as critical to its work.

At the same time, the day also showcased persistent confusions. Filmmakers bemoaned the hassle of getting licenses, which is an unbearably irritating process but a necessary one for uses that do not fall under Fair Use. Filmmaker Brett Gaylor complained about extensive licensing issues for a film that was made in Canada, which does not even have the doctrine of Fair Use. (Canadian exemptions fall under fair dealing, which is far more limited.) Filmmaker Nina Paley called for the abolition of copyright, and charged lawyers with keeping it in place to protect their wallets.

In a lunch session, one questioner asked if it wouldn’t be better to have more “bright line” rules than Fair Use allows. Both legal scholars on the panel, Peter Jaszi and Anthony Falzone, argued against this. They both pointed out that any “bright line” rules tend to constrict usage and to limit the adaptability of exemptions. This is clearly demonstrated by the problems people like Gaylor have in employing the doctrine of fair dealing. They both argued that the approach of community consensus around interpretations of Fair Use has been far more effective.

My presentation, which explains some of the successes of the codes of best practices in Fair Use, is on Slideshare.

I look forward to next year’s World’s Fair Use Day. The first annual event was a marking moment for Fair Use as a vital part of copyright doctrine and a guarantor of digital expression.