#copyrightweek

by guest bloggers Patricia Aufderheide, University Professor, American University School of Communication; Brandon Butler, Practitioner-in-Residence at the Glushko Samuelson IP Clinic, American University Washington College of Law; and Peter Jaszi, Professor of Law and Faculty Director of the Glushko-Samuelson Intellectual Property Clinic, American University Washington College of Law

Copyright Week is the perfect occasion to celebrate fair use, certainly the most dynamic and arguably the most important doctrine in copyright law. The last 15 or 20 years have seen a remarkable series of developments that make fair use, now more than ever, the most vital protection of the public interest in the Copyright Act. For Copyright Week, we wanted to highlight a part of the fair use landscape that, perhaps more than any other, puts fair use in the hands of practitioners who need it most: the Fair Use Best Practices movement.

With a little help from a team of researchers at American University, an ever-growing cadre of communities has identified where their work necessarily encounters copyright and the kinds of fair uses that are essential to the communities’ continued flourishing and success. Each code (read them all here) contains a short but powerful description of fair use’s broad history and meaning, followed by a set of principles that describe situations where fair use may apply accompanied by limitations that describe the outer bounds of community consensus. The effects of these documents can be dramatic. Documentary filmmakers came first, and had great success, but they’ve been joined by educators, scholars, poets, online video makers, journalists, and (most importantly for this blog) librarians. As more and more people need fair use to continue getting things done, best practices are an idea whose time has come.

So, without further ado, we give you five reasons fair use best practices are changing the world:

They’re based on solid legal footing. Specifically, path-breaking research by copyright scholar Michael Madison. Madison surveyed over a century of fair use decision making and found that, over and over again, courts determining whether a use was fair inquired into the mission and values of the communities standing before them to vindicate their fair use rights. Uses firmly grounded in the socially beneficial mission of a practice community were much more likely to be blessed as fair.

Each code starts from that insight, together with the dominant paradigm of “transformative use” that informs court decisions in fair use. The community norms developed on this foundation are then further shored up by a legal review by five independent experts from diverse backgrounds who certify that the Code represents a reasonable application of fair use law to the practice area. Practices consistent with the Documentary Filmmakers Code have been blessed by federal courts, as have practices identified as fair in the #Librarianscode. Indeed, between Georgia State and HathiTrust, the practices described in four of the eight principles in the #librarianscode have been blessed by federal courts.

They clear away the crud. Anyone who engages with copyrighted material for more than a few minutes will encounter a dizzying array of so-called ‘guidelines,’ rules of thumb, ‘negotiated’ agreements, and urban myths and legends that proliferate around copyright. The goal of best practices is to identify the best approaches to recurring fair use scenarios, rather than to measure the lowest common denominator of the status quo and freeze it in amber forever. Therefore, developing best practices is an opportunity for communities to step back and question current practice in light of the latest developments in fair use law and the broadest, deepest understanding of the mission of the community. Librarians, for example, categorically rejected the arbitrary numerical limits in the 1976 Classroom Photocopying Guidelines. On reflection, they were simply impossible to justify in light of the actual needs of librarians and the contours of modern fair use law.

They make the law less alien, and rights less scary. By grounding fair use choices in practices and norms that are native to a community, best practices change attitudes toward fair use. People with a Code go from a kind of grudging, fearful “compliance” with an alien copyright law imposed from above to a unified exercise of core First Amendment rights that emerges from their own values. Teachers, librarians, filmmakers, and poets who used to feel like they were acting alone in the face of an intimidating body of law come to understand that they are actually engaged collectively in legitimate, lawful acts that are normal, indeed essential, for their profession.

They help you get things done. The bottom line for any group with a shared mission and goals is whether they are able to advance mission and achieve goals. Where myth, misinformation, fear, uncertainty, and doubt dominate, any number of important projects and practices can be suppressed, driven underground, or stymied altogether. Films don’t get made, or they don’t get distribution; poems aren’t written or published; works languish in archives inaccessible to remote or print-disabled researchers. Best practices are relentlessly pragmatic and mission-centered; through them, practitioners articulate fair use solutions to real, live problems. When the community takes best practices seriously, real work gets done—work that might otherwise have been inconceivable.

They help you get management on board. Almost everyone has a supervisor, counselor, or other gatekeeper who decides what projects they can pursue, whether their work will see the light of day, and so on. Whether it’s a Dean, a TV producer, or a publishing agent, sooner or later you’ve got to convince someone else that what you’re doing is legit. Understandably, gatekeepers are often expected (forced, even) to play the role of “copyright cop,” saying “no” to any project that looks like it might raise an eyebrow.

Before best practices, each practitioner would face these folks alone, often as non-lawyers, and try to convince them to take a risk based on, well, who knows what. But with best practices in hand, practitioners can go to their Deans, their publishers, their producers, whomever, and say, “What I’m doing is normal. It’s grounded in the values of my community. And it’s in line with a document that’s been vetted by experts and endorsed by leading organizations in my field.” That’s powerful stuff! No wonder the Documentary Filmmakers code has been so transformative, as has the #Librarianscode, and many many others.

So, there you have it. As Copyright Week winds down and we contemplate the copyright system we have, and the opportunities for change and improvement, we submit that fair use best practices are, by far and away, the most accessible, effective, and powerful tool in the hands of the public.

On January 14, 2014, the House Committee on the Judiciary Subcommittee on Courts, Intellectual Property and the Internet held another hearing on the issue of copyright reform, this one focusing on the broadcast right, the making available right, and state laws and building codes under copyright. In advance of the hearing, the Library Copyright Alliance (LCA) submitted a statement addressing all three issues. The full statement can be found here.

Broadcast Right

The World Intellectual Property Organization (WIPO) has considered proposals to create a broadcast treaty that would create a new intellectual property protection for broadcasters. This new right would create a right to control broadcasts and would exist in addition to the copyrights held by the creators of the programming shown, thereby creating an additional layer of rights to contend with for users of broadcasted content. The LCA statement notes that it has seen “no compelling public policy reason for a broadcast treaty” at the WIPO and, likewise, sees no justification for a broadcast right in the United States. In particular, LCA has concerns that a broadcast right could impact libraries by limiting classroom instruction, particularly for distance education; educational and research uses that are currently permitted by the Copyright Act; and public disclosure of news, public affairs programs, and public domain materials, particularly on the Internet.

Making Available Right

LCA also has concerns regarding the creation of a making available right, an exclusive right to authorize or prohibit communication of works or the “making available” of the work through interactive networks, a right that could expand the distribution and public performance rights that currently exist under U.S. law. LCA has particular concerns regarding a making available right and its impact on the three-year statute of limitations found in 17 U.S.C. §507(a). The concerns arise from courts’ interpretation of the distribution right in Hotaling v. Church of Jesus Christ of Latter-Day Saints and Diversey v. Schmidly. In these cases, the courts circumvented the three-year statute of limitations by distorting the meaning of the distribution right and finding that the mere availability of an unauthorized copy to the public qualifies as distribution, even where no patron ever borrowed the copy. The statement warns that, “A making available right has the potential to eviscerate the statute of limitations in copyright cases in the digital age. Accordingly, Congress should proceed in this area with great caution.”

A making available right could impact a wide range of activities and create liability even where an unauthorized copy of a work was never downloaded, used or truly distributed. For example, “an image [could be] included in a PowerPoint presentation that was archived on the website of a library association after the presentation was delivered. The image could be detected more than three years later by a company that crawls the web for an image-licensing firm, such as Getty or Corbis.” However, even if that presentation had never been downloaded in three-years, the creation of a making available right could overcome the three three-year statute of limitations and create liability. The LCA statement notes that “There is no policy justification for imposing strict liability for statutory damages simply because the potential existed during the three year limitation period for a person to have viewed the image, just as there is no policy justification for a library to be liable for infringing the distribution right with respect to a copy that was never borrowed.”

State Laws and Building Codes

LCA continues to oppose copyright protection for state laws in building codes and supports the Fifth Circuit’s 2002 decision in Veeck v. Southern Building Code Congress that “‘the law’ whether articulated in judicial opinions or legislative acts or ordinances, is in the public domain and thus not amenable to copyright.”

Veeck reflects the strong public policy that the public must have free access to the laws, in order to understand the legal rules to which they are subject. Notably, Veeck’s ruling was limited and applied only to reproduction of enacted model laws, not the model codes themselves, thereby continuing to provide the drafters of such codes the ability to protect their model laws or regulations through copyright.

Welcome to Day One of Copyright Week! Each day begins with an important issue. Today's issue is Transparency.

Copyright policy must be set through a participatory, democratic and transparent process. It should not be decided through back room deals or secret international agreements.

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EFF Action Alert: Don't Let Congress Fast-Track TPP

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