#fairuseweek2016

By Patricia Aufderheide

Fair use—scary grey area, or friend of free expression? A new code of best practices in fair use for the visual arts makes clear that knowing your field’s standards makes all the difference.

In a world of no guarantees, knowing what’s conventional is a risk tip-sheet. That’s why having best practices codes among communities of creative practice is so helpful. The latest creative community to develop consensus around how to employ fair use is visual art professionals—fine artists, museum personnel, art scholars, art teachers, and editors of art publications.

When the College Art Association, the largest membership organization representing the visual arts community, released the Code in February 2015, visual arts professionals were locked into a permissions culture that delayed their work, raised costs, and most importantly, stifled imagination.

Did the Code make a difference?

Bottom line: Yes. Yes. Yes.

Survey: Thumbs up.

In a survey that about 2,500 CAA members took in the last three months, more than two-thirds had heard of the the Code of Best Practices in Fair Use for the Visual Arts. A third of those who knew about it had told someone else about it, usually several kinds of others—students, colleagues, superiors. That act of sharing was also an act of trust in the value of the Code.

Fair use is a valuable tool to visual arts professionals, because of the nature of their work. The majority of respondents employ third-party copyrighted material regularly, and 4/5 of those have employed fair use to do it.

The Code appears to have expanded the pool of people who employ fair use significantly, in only a few months. Eleven percent of survey respondents who had ever employed fair use had used it only after the Code was created.

Those respondents who knew about the Code and used it to employ fair use were also much more likely to have made their first fair use decision after the Code was created than others.  

Contracts: Please read.

Publishers are also suddenly smiling on fair use, in a field where authors traditionally pay hundreds, thousands or even tens of thousands of dollars out of their own pockets to cover costs of image permissions for their scholarly articles or books. The College Art Association itself overturned its copyright policies for authors. CAA used to demand that authors get permissions for all images and indemnify the press. Now CAA’s contract asks authors to read the Code and apply it to their uses. Indemnification is no longer required.

Yale University Press, inspired by the Code, has drawn upon it to write its own fair-use guidelines for scholarly publishing. Furthermore, the Press’ decision involved other parts of Yale University, including museums, which are now also considering expanding their access to fair use.  

The Menil Collection in Houston, as a result of using the Code, has expanded access to fair use for its use of images its press office work, as well as use of images more generally. Benefits, according to editor Joseph Newland, include speeding workflow and helping the press office respond in a timely way.

At the Detroit Institute of Arts (DIA), Publishing Director Susan Higman Larsen had previously bowed to the wishes of an artist’s estate. But now that she has read the Code and shared it with colleagues, the DIA has decided to publish a work using images from the same estate under fair use.

Artist: Yes I Can.

The Code’s utility also extends to individuals. Artist Rebekah Modrak, who teaches at the University of Michigan, spoofed the overexemplifying hipster-Brooklyn site Best Made Co. with an ironic (and hilarious) imaginary company Re Made Co. (Watch the side-by-side video of Best Made’s ad for an artisanal axe and Re Made’s version promoting a plunger.) After getting a cease-and-desist letter from Best Made, she turned for advice to CAA, because she had read the Code. CAA steered her to good legal advice at University of Michigan. Her university’s lawyers welcomed the opportunity to support her fair uses.

She then recounted her experience for a Routledge art scholarly publication; she used the Code to convince the Routledge editors that fair use would apply to reproduction of images of her own art.

Comfort in consensus.

The rapid deployment of the Code of Best Practices in Fair Use for the Visual Arts in the field was a surprise to those of us who facilitated its creation. During the process of creating it, we heard from many who told us of the highly personal relationships in the art world that would trump any legal right; about the fierce opposition they would face from estates and brokers; and about fears that artists would be outraged. But since the Code appeared, we have seen no outrage from artists, estates or brokers. We have seen institutions make principled decisions to lower marketplace friction and meet mission by employing fair use. Most of all, we have seen people who respect themselves and the good work they do decide to use the legal rights available to them, without repercussion. We are eager to see what happens next year.

Rebekah Modrak, Associate Professor, School of Art & Design at the University of Michigan, recounts the challenges she encountered after creating a work of art that incorporated 3rd party copyrighted material. In 2013, she founded Re Made Co., a “company” that parodies the urban woodsman aesthetic of Best Made Co, which markets designer axes through the rhetoric of authenticity, the appropriation of working-class identities, and the revitalization of traditional male roles.

After receiving a cease-and-desist letter, she turned for advice to College Art Association (CAA), which connected her with legal advice about fair use at the University of Michigan.

Prof. Modrak then published an account of her experience for a Routledge publication, Consumption Markets & Culture. The editors had concerns about the use of 3rd party materials – they thought she needed permission. Instead, she relied on CAA’s Code of Best Practices in Fair Use for the Visual Arts to persuade them that fair use would apply.

by Bobby Glushko, Head, Scholarly Communications and Copyright, University of Toronto Libraries

Friday February 22, 2016 was a great day for fair dealing in Canada. 

Last Friday, the Copyright Board of Canada, an administrative body that sets royalty rates for collective licenses, issued a decision on the rate for copying undertaken in K-12 educational settings.  Access Copyright, a collective licensing organization that represents Canadian writers and publishers, had originally proposed a tariff of $15 per student for the initial phase of the tariff.  The Board, after hearing all of the evidence, certified a tariff of $2.46 for the initial phase, dropping to $2.41 after three years.  This was not only a substantial reduction from Access’ request; it was also half of the previous tariff certified by the Board. 

This ruling, came as a welcome confirmation that the Canadian copyright balance has become increasingly user positive.  In recent months Access Copyright has suffered significant defeats as the Board and the courts have become increasingly comfortable with fair dealing and the vital role it plays in Canadian society.  The role of the collectives in facilitating the use of copyrighted works has fallen in importance as a more robust understanding of fair dealing has come to be understood.

Fair dealing has not always been so strong in Canada.  For many years fair dealing had been seen as an affirmative defense to copyright infringement, as a “loophole” that could enable someone to get away with bad behavior.  However, in the 2004 landmark Supreme Court decision CCH Canadian Ltd. v. Law Society of Upper Canada, the Court demolished that theory, stating that

The fair dealing exception, like other exceptions in the Copyright Act is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.  As Professor Vaver, supra, has explained, at p. 171:  “User rights are not just loopholes.  Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”

This ruling, the basis of a newly awakened fair dealing, was resoundingly strengthened by the Court in 2012.  2012 was a big year for Canadian Copyright, as noted academic Michael Geist wrote, the Court “shook the foundations of Canadian copyright law” by issuing five decisions on copyright on one day; these decisions have been called the “Copyright Pentalogy” and showed the Court’s commitment to robust fair dealing.  On the legislative side, 2012 also saw the passage of Bill C-11, the Copyright Modernization Act.  Of particular importance in the Act was the inclusion of “education” as a class of activity that can be seen as fair dealing.  This change, alongside the Pentalogy, led many Canadian colleges and universities to adopt fair dealing guidelines that treated fair dealing like a user’s right.

However, these guidelines were subject to some controversy; fearing an erosion of their influence, Access Copyright sued York University for copyright infringement, stating that their guidelines were “authorizing and encouraging copying that is not supported by the law.”  In Quebec, a similar suit was brought by Copibec, the Quebec author’s collective, against Université Laval as well.  However, with the Board’s latest tariff decision relying so heavily on fair dealing, it seems that a strong culture of fair dealing is here to stay.  As Michael Geist recently stated “the Board Minced no words in explaining the reduction:

‘The main reason for that decrease is the fact that as a result of the decision of the Supreme Court in Alberta v. Access Copyright…This resulted in the Board’s finding that a significant proportion of copying by elementary and secondary schools was fair under the fair-dealing provisions of the Copyright Act. These copies therefore do not generate remuneration.’”