20.1 Fair use as a complement to open licensing  (Page 3/5)

A possible solution

Educators might do well to consider the example of documentary filmmakers. These filmmakers were finding themselves unable to get the insurance companies that cover their industry to agree to cover any film if it made any fair use of copyrighted materials whatsoever. They were increasingly subjected to rights clearance requirements even for trivial use of ostensibly copyrighted material, and it was interfering with their ability to use film as a medium for speaking out.

Ultimately, a group of five documentary film organizations came together to draft a Statement of Best Practices in Fair Use for their industry. This Statement was then endorsed by fifteen organizations, giving it a compelling claim to representing the standards of that community. This proved crucial, since community standards are given significant weight when determining whether use is fair use. This Statement became the definitive one by which courts would make this determination, leading to greatly increased confidence on the part of documentary filmmakers and the companies that insure them. In fact, several insurance companies have since switched from rejecting all fair use to covering it, provided that it falls within the parameters outlined by the Statement.

American educators should look at this example and work together to put together a similar statement that can help reclaim fair use as a clear-cut option for teachers and professors who wish to make use of the vast culture that surrounds us when engaging in our professions. Fair use is ultimately based on our right to free speech. Let’s speak out while we still can!

Notes

There are a number of resources I found particularly helpful and interesting when writing this article:

• “The Cost of Copyright Confusion for Media Literacy” by Renee Hobbs, Peter Jaszi, and Pat Aufderheide; published by the Center for Social Media at American University.
• Wikipedia’s article on Fair Use , which is pretty approachable for an article about a legal doctrine.
• A video called A Fair(y) Use Tale which explains fair use and is comprised entirely of short clips from Disney movies. (For those who don’t get the joke, Disney has been one of the most vicious lobbyists for copyright extension, despite its longstanding use of material in the public domain.)

This article is dedicated to the public domain, with no entitlements reserved.

1. ken udas - november 16th, 2007 at 6:09 am

Steve, I think this is a very interesting posting and points to a doctrine that has not been discussed in this Series to this point. I have a bunch of questions, but will refrain from posing them all at once. It seems to me that the thrust of your post is that:

The challenge with Fair Use is that it is ambiguous. It is a defense whose application is subject to significant interpretation in the court.

We can potentially reduce the ambiguity and risk of using if we act as the documentary film professionals and draft a Statement of Best Practices in Fair Use, but apply it to education.