Because I believe this is really about creativity and to
get in the mood you might like this video clip: Sir Ken Robinson: Do schools kill creativity? (An
excellent 20 minutes)
FAIR USE: Used and Unconfused
I believe fair use is the most important concept relating to intellectual property with which teachers and media specialists must contend. In preparing and delivering instruction we are involved with this issue daily. (At one point in preparation for this site I was intending to title it:Confessions of a Copyright Infringer. I’ve been a public school teacher for over thirty years.) In looking to my future as a media specialist and librarian I have been trying to untangle the mass of laws, doctrine and court cases which surround copyright and fair use. I’ve discovered I’ll probably never figure it out, but I will be informed. Fair use is an intentionally unsettled issue. The Intellectual Property and the National Information Infrastructure report of 1995 (page 75) states: “The most significant and perhaps, murky of the limitations on a copyright owner’s exclusive rights is the doctrine of fair use.” My purpose then is to prepare/inform myself for my future as a librarian, to advise and inform others about copyright and fair use.
FAIR USE: Used and Unconfused
I believe fair use is the most important concept relating to intellectual property with which teachers and media specialists must contend. In preparing and delivering instruction we are involved with this issue daily. (At one point in preparation for this site I was intending to title it:Confessions of a Copyright Infringer. I’ve been a public school teacher for over thirty years.) In looking to my future as a media specialist and librarian I have been trying to untangle the mass of laws, doctrine and court cases which surround copyright and fair use. I’ve discovered I’ll probably never figure it out, but I will be informed. Fair use is an intentionally unsettled issue. The Intellectual Property and the National Information Infrastructure report of 1995 (page 75) states: “The most significant and perhaps, murky of the limitations on a copyright owner’s exclusive rights is the doctrine of fair use.” My purpose then is to prepare/inform myself for my future as a librarian, to advise and inform others about copyright and fair use.
Copyright has a “loophole” called FAIR USE. Paradoxically, the constitutional purpose in granting copyright protection in the first place, “to Promote the Progress of Science and Useful Arts,” needs a loophole to guarantee or provide for just that.
The world’s first national copyright law, the Statute of Queen Anne took effect in England on April 10, 1710, as first told to me by Rick Falkvinge of the Swedish Pirate Party, Copyright regime vs. civil liberties at (about 16 minutes into his lecture). [(See also: A Fair(y) Use Tale, an entertaining Disney parody on copyright and fair use at Stanford Copyright & Fair Use Center. (And while you’re at it, also go to Lawrence Lessig, and especially, Larry Lessig: How creativity is being strangled by the law.)]
In the United States Constitution, the copyright clause speaks of “securing for a limited time to authors and inventors the exclusive right to their respective writing and discoveries.”
In 1954, the U.S. Supreme Court makes it clear how copyright promotes progress. “Sacrificial days devoted to such creative activities deserve rewards commensurate with the service rendered.” (page 22 footnote)
The Copyright Act of 1909 identified that copyright is the exclusive right to:
1. print, reprint, publish, copy, and vend;
2. translate or make other versions;
3. deliver, read, or present in public, for profit of a lecture, sermon, address or similar production, or other nondramatic literary work;
4. perform or present publicly a drama; and
5. perform in public for profit if a musical composition.
(Copyright Office Basics, and a little information, Welcome to the U.S. Copyright Office)
The Copyright Act of 1976 included the judicially created doctrine of fair use. Four factors are considered when judging fair use.
(A fifth has been found.)
1. The Transformative Factor. The purpose and the character of the use. While most sources mention whether the use is of a commercial or for nonprofit educational purpose, questioning whether the original work has been transformed by adding new meaning, information, aesthetics or understanding should be the essence of this factor.
2. The Nature of the Copyrighted Work. Nonfiction works get more leeway in fair use than fiction. Because unpublished works may deserve more control over their first public appearance, fair use may be more difficult to defend.
3. The Amount and Substantiality of the Portion Taken. In parody, shoot at the heart. For other works, less is more, and don’t give away the ending. Some schools have devised proportional formulas and this is evident in Fair Use Guidelines for Educational Multimedia.
4. The Effect of the Use Upon the Potential Market. Has the copy undermined the income or potential market of the work? Except parody and criticism have the permission to destroy the value of the original.
5. The “Fifth” Fair Use Factor: Are You Good or Bad? On reviewing cases, a judge or jury’s decision may be based on whether they were morally offended.
(Stanford Copyright & amp; Fair Use Center)
Which brings us to 2 Live Crew’s parody of “Pretty Woman.” In 1994, the Supreme Court unanimously ruled in favor of 2 Live Crew and stated that these four(5) factors should not be seen as a checklist. The factors are a continuum and a balance of fairness is sought. Confused? (Campbell v. Acuff-Rose Music, Inc.)
The Copyright Act of 1976 also recognized the need for exclusive rights for libraries. Libraries may make copies; but make sure there’s no commercial advantage; and allow everyone access, and put a copyright sticker on it. (Libraries might not be able to make copies because of “digital locks” devised by copyright holders. This continues to be an issue in fair use. FAIR USE Act of 2007 and Reps. Boucher and Doolittle Introduce the FAIR USE Act of 2007)
Fair use embodies the spirit of copyright. Because of fair use, copyright cannot become censorship. It protects our First Amendment right of expression. Supreme Court Justice Story is credited with formulating the original fair use factors for consideration in 1841. And in 1845 Justice Story again identified a significant truth in the copyright debate. “Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.” (The Free Expression Policy)
This is one truth upon which recent copyright reform is being fixed. McKenzie Wark, author of A Hacker Manifesto, recognizes that “Information wants to be free but is everywhere in chains.” Can we shift from a commercial economy to a gift economy in order to free information? Wark tells of the Creative Commons, the Open Source and Free Software Movement pitted against the vectoralist class, owners of copyrights and patents that control information flow.
(A HACKER MANIFESTO [version 4.0] by McKenzie Wark)
As a future librarian I turn to Fair Use in the Electronic Age: Serving the Public Interest (Association of Research Librarians), a document in progress from the library community. It states that the lawful use of copyright material must be allowed without individual transaction fees. Libraries should be able to preserve copyrighted works in their collection and avoid liability for the unsupervised actions of their users. Licenses will not restrict fair use. The right of authors and users must be balanced and retained in the changing electronic environment.
If that doesn’t work, I’m becoming a Digger (Digging in the Epistemic Commons by Stephen Wright).
MAKE SURE to READ and WATCH:
The publication: The Code of Best Practices in Fair Use for Media LiteracyEducation.
The video clip: FAIR USE FOR MEDIA LITERACY EDUCATION.
The publication: The Cost of Copyright Confusion for Media Literacy.
As a future librarian I turn to Fair Use in the Electronic Age: Serving the Public Interest (Association of Research Librarians), a document in progress from the library community. It states that the lawful use of copyright material must be allowed without individual transaction fees. Libraries should be able to preserve copyrighted works in their collection and avoid liability for the unsupervised actions of their users. Licenses will not restrict fair use. The right of authors and users must be balanced and retained in the changing electronic environment.
If that doesn’t work, I’m becoming a Digger (Digging in the Epistemic Commons by Stephen Wright).
MAKE SURE to READ and WATCH:
The publication: The Code of Best Practices in Fair Use for Media LiteracyEducation.
The video clip: FAIR USE FOR MEDIA LITERACY EDUCATION.
The publication: The Cost of Copyright Confusion for Media Literacy.
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