Reclaiming Fair Use: How to Put Balance Back in Copyright

Fierce defence of intellectual property limits free speech and stifles creativity, finds Matthew Rimmer

January 12, 2012

This lively book, Reclaiming Fair Use: How to Put Balance Back in Copyright, is designed to liberate people from the "Mind Forg'd Manacles" of copyright law. The authors - film and media scholar Patricia Aufderheide and professor of law and stalwart defender of the public interest Peter Jaszi - hope to help readers "understand how to think about and use copyright, and especially your right to use copyrighted material without permission or payment when you make a work - whether a blog entry, a song, a mashup, a poem, a documentary, a magazine article, a lesson plan, a scholarly archive, a slide show, a technical manual, a scrapbook, a collage, or a brochure".

The broad and flexible defence of fair use was codified in the US copyright act in 1976. The defence provides that the use of copyright material for "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright". This defence has also been applied in a wide range of cultural and technological contexts.

In Reclaiming Fair Use, Aufderheide and Jaszi furnish a portrait of the social life of copyright law. They draw on their pioneering empirical work on copyright law's impact on the economic and artistic practices of film-makers. Their report Untold Stories, released in November 2004, looked at the problems of licensing copyright in the making of documentary films. The authors concluded that "documentary filmmakers were actually avoiding entire areas of production out of self-censorship". In a memorable case study, Aufderheide and Jaszi tell the story of Drew Morton Goldsmith, a young disability activist. His documentary film, No Pity, which he made when he was just 12, relied on more than 150 clips of copyright material. Concerned by the threat of cease-and-desist notices from disgruntled charities, Goldsmith had to obtain legal advice about whether the use of such clips was covered by fair use.

In response to such practical concerns, Aufderheide and Jaszi have developed a document titled Documentary Film-makers' Statement of Best Practices in Fair Use. They note: "Best practices projects - the creation of codes of best practice in fair use that provide consensus interpretation targeted to particular communities of practice - have played an important role in excavating a place for fair use in the copyright reform conversation." Another important development has been the establishment of the Fair Use Project at the Stanford Law School. Led by the redoubtable and tenacious attorney Anthony Falzone, the project has represented creative artists in copyright litigation over fair use. In what came to be known as the Battle of Hogwarts, the Fair Use Project represented the author of the Harry Potter Lexicon against J.K. Rowling and the film company Warner Bros. It also helped to defend Carol Loeb Schloss, the biographer of Lucia Joyce, against threats of copyright action from James Joyce's estate and, for a time, it represented graphic artist Shepard Fairey in litigation with Associated Press over the "Obama Hope" poster.

Aufderheide and Jaszi make a strong case for the virtues of a broad and flexible reading of the defence of fair use in the US. They contend that the defence of fair use plays an important role in promoting creative expression and freedom of speech. The authors note that "the problems that vidders, samplers, bloggers, and remix artists face are problems that affect us all, at every level of production". Indeed, they observe that "long and strong copyright" threatens to "censor the future for everyone". The authors also contend that "fair use is an excellent platform for economic growth, which supports new enterprises, without materially harming the owners of existing copyrights". Technology developers such as Google, YouTube, eBay, Facebook, Twitter and Skype have flourished because of the protection afforded by the defence of fair use.

Reclaiming Fair Use is clear, accessible and pithy and will be particularly helpful for creative artists, copyright users and legal neophytes. Given the volume of litigation over copyright exceptions, this work is a masterpiece of miniaturisation, compressing the topic into just over 200 pages.

A short concluding note touches on the international environment in respect of copyright exceptions. There is certainly scope for the authors to write a sequel - "Exporting Fair Use", perhaps - for those blighted countries, such as Australia, Canada and the UK, that lack the freedoms and flexibilities of the US defence of fair use.

Reclaiming Fair Use: How to Put Balance Back in Copyright

By Patricia Aufderheide and Peter Jaszi

University of Chicago Press

216pp, £32.50 and £11.00

ISBN 97802260326 and 032283

Published 19 August 2011

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