The Center for Social Media at American University recently launched yet another in its amazing line of best practices guides, The Code of Best Practices in Fair Use for Media Literacy Education. I have received notes from so many people asking me whether I've seen the guide, that I am very encouraged that it's getting the widespread exposure it deserves. Of course I recommend to everyone reading this post that you have a look at it, even if you don't teach media literacy. And, I'm very excited for the Center for Intellectual Property that its next virtual scholar will be Peter Jaszi, who had quite a hand in the development of this approach to expanding reliance on fair use.
This document, like the others produced by the Center, explains the place of fair use in our law, the importance of relying on it, and most important of all, the elegance and wisdom of a flexible standard for using others' works. Unlike the rigid structures that most provisions of copyright law lay out, structures that in many cases are either obsolete before the ink hits the paper, or actually work to freeze backward-looking practices in the face of change, fair use can be adapted anew, every day, to the changing environment that we find ourselves in. "Rapid" barely begins to describe the rate of change in technological capability and corporate business models necessitated by that change.
This set of Best Practices takes care in its introductory remarks to describe clearly how it works, what it encompasses and what it does not do as well. For example, it makes very clear that it's not about showing movies in class, either to reward good behavior or for instructional purposes covered by Section 110 (1) and (2) (the TEACH Act). It's about creative, transformational uses of parts of others' works in new works. It also takes pains to dispel irrational fears of litigation in these contexts where markets are unlikely to be affected by uses that also have great social utility. So far all of the Center's guides have focused on creative reuses and remixes of others' works, where we have our strongest claim to a broad understanding and practice of relying on fair use.
But I want to suggest that even though I agree with the premise of the Best Practices approach, that creative uses enjoy the strongest claim and need the strongest defense, the rapid change in business practices among copyright owners is setting the stage for even non-creative uses, those that simply reproduce and distribute a work, to need and deserve just as strong a defense, when those uses do not interfere with markets.
From the introduction to the Best Practices for Media Literacy:
Courts have told us that copyright owners aren't entitled to an absolute monopoly over transformative uses of their works. By the same token, however, when a use supplants a copyright owner's core market, it is unlikely to be fair.
Courts are also beginning to recognize that the reverse is true too: When a use does not supplant a copyright owner's core market, it is likely to be fair even if it is not creative in the classical sense of that word. The recent Perfect 10 v. Amazon/Google case as well as other search engine cases illustrate how the weighing and balancing tips in favor of copying and distribution when its social benefits far, far exceed some marginal effect, if any at all, on peripheral or theoretical, or as I would argue, past, dead and gone, markets.
That's what I find so exciting about what's happening in the markets, in business practices around digital copies, and in movements like open access for scholarly works. Copyright owners are indeed beginning to get it that controlling digital copies has not worked nearly so well as they hoped it would, and will not work as a long-term strategy to adapt to the digital environment because it pits them in a losing battle against one of the most important benefits of the digital environment. When giving away digital copies increases sales of other goods and services for which the copyright owner can reap more than sufficient reward to encourage new creative works, controlling copies ceases to have the desperate appeal it once held, and its exorbitant costs can no longer be justified.
So I want to propose a new set of Best Practices, one for libraries: Best Practices for Fair Use in Adapting Patron Services (ie, Section 108) to Changing Technologies and Business Models. (Feel free to play with the title!)
The Best Practices approach would be much better than attempting to amend the law in this area. I offer the Section 108 Study Group Report as Exhibit A to support my argument. Except for the fact that the representatives of cultural institutions held the line and refused to compromise the public interest, the results of throwing them and copyright owners into a room together for 3 years was pretty predictable: The view of those with more power prevailed over the view of those with less. The Report documents in almost 150 pages all the details of their disagreements about hyper-technical matters, and, sadly, brings to mind "rearranging deck chairs." Publishers repeatedly claim that libraries are their competition and that library copies must be controlled to protect publishers. As I read the Report, I couldn't help feeling that if publishers really did (and still do) believe that libraries offer them any real competition, then there's absolutely no hope for the industry. Surely they recognize that Google and Amazon are the only competition on the field as currently constituted that they or libraries ought to be worrying about.
The Section 108 Study Report makes crystal clear that trying to change Section 108 won't succeed. The group was not even able to come to grips with the realities of how libraries archive works, replace copies, and supply copies to patrons and to other libraries today, to say nothing of how those practices are changing and will change dramatically over the next 10 years. The parties to the negotiation were locked into concepts of their roles that were far too rooted in the past, and explicitly (unabashedly) aimed at protecting industry business models that the public has not accepted and that the industries themselves are fast recognizing have failed.
In contrast, the Best Practices approach simply seeks to document the flexible fair use practices that are actually in use today -- practices that have enabled libraries to functionally deliver services under Section 108's rigid, disorganized and antiquated conceptions of those services for decades. Our own interpretations are all we have had in the absence of a sensible Section 108 to deliver services, without affecting the markets for published works. We are delivering services. We are not affecting markets. All we need to do is document how we are doing it. We need to do that now, to demonstrate that there is simply no need to try to change Section 108. The market is changing, and Best Practices can and will change too. A revised Section 108, if the Study Group Report is any indication, will cripple adaptability by locking libraries and archives, and perhaps even museums, into even more elaborately rigid structures than the current Statute creates. Again, look at the Report. That approach simply is not the best way to document current practice or enable the changes right around the corner. We'll simply end up relying on fair use to fix what Section 108 gets wrong, again. So why not just start working on our Best Practices today?