Reclaiming Fair Use Book Review by Brendan O'Brien

Reviewed by: Brendan O’Brien

INTRODUCTION

Copyright, like much of law and policy, can be viewed from the lens of a battlefield. It is a struggle between two opposing viewpoints on different ends of a spectrum. At some points in time, one Army can appear to be making great advances on the battlefield, taking great strides in on direction towards its opponent. This can appear to limit the opponent, and all hope would seem lost; however, this opponent of whom all thought all hope was lost should not be discredited. He has a secret weapon that will level the playing field. Patricia Aufderheide and Peter Jaszi believe this secret weapon, on the battlefield of copyright law, is the Fair Use doctrine.

The Fair Use doctrine consists of four factors. In determining whether the use made of a work in a particular case is Fair Use the following factors should be considered:[i]

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work.

Both published and unpublished works are protected by the Fair Use doctrine, if the above factors are used to determine whether the proposed infringement violates the above components of Fair Use.

The authors of this book hold that these factors affect far more usage than was previously believed by scholars in the copyright arena. This book demonstrates that the Fair Use doctrine is the secret weapon that content creators can use in their battle in the copyright war.

GENERAL INFORMATION

The book to be reviewed is entitled “Reclaiming Fair Use, How to Put Balance Back in Copyright”. It was authored by Patricia Aufderheide and Peter Jaszi and copyrighted in 2011. It was published by the University of Chicago Press, in Chicago, Illinois. It contains 185 pages, costs $17.00, and the ISBN number is 978-0-226-03228-3. It is available in paperback. The general subject of this book is the Fair Use Doctrine as it applies to copyright law in the United States.

The purpose of the book is to educate would-be filmmakers, artists, and other content creators who are seeking to use the work of others in their own pursuits. This book is a succinct guide that explains the Fair Use doctrine that may allow creators to use samples of that work without violating copyright law. This book provides a brief history of the development of the law of copyright, describes the shift of power that has occurred from one end of the spectrum to another in terms of the power of the copyright holder. The also provides several examples of content communities that have created their own, and successfully utilize best practice codes in order to determine if what they are doing is in accord with the best practice laws. The book contains several appendixes to show the best practice codes that these groups have created, and also contains several answers to breakout questions added throughout the chapters of the book. The main purpose of this book is to educate someone, with little to no knowledge about copyright, their rights under the Fair Use Doctrine.

The book is divided into ten chapters. It contains several appendices that contain codes of best practices for those wishing to evoke the best practices doctrine. The book also has several real-world breakout questions located at various points throughout the chapters. The breakout questions pose various scenarios related to the subject matter previously discussed to aid understanding of the subject matter and hone the point made.

The primary thesis of this book is that scholars have misperceived and incorrectly interpreted copyright law[ii]. Because of these misperceptions, there is often a chilling effect on the use of previously created material by content creator, who frequently fear violating copyright law with even small amounts of use. It is the authors’ conviction that the Fair Use Doctrine is much broader than previously interpreted by legal scholars. This book demonstrates how these would-be content creators could use content created by others in their pursuits without committing unforeseen infractions.

Both of the authors of this book have distinguished careers and are highly regarded in the field of copyright. Both serve as educators and are at the forefront of the movement to redefine Fair Use. Patricia Aufderheide is a professor in the School of Communication at American University. She also co-coordinates the Fair Use and Free Speech project at the Center for Media & Social Impact, with her co-author. She has been a Fulbright and John Simon Guggenheim fellow and has served as a juror at the Sundance Film Festival. [iii]

Peter Jaszi is a Professor of Law and the Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law. Professor Jaszi is a frequent speaker on intellectual property to audiences around the world. He has authored several articles on copyright history and theory. He is a Trustee of the Copyright Society of the U.S.A, and a member of the editorial board of its Journal. In 2007, Professor Jaszi received the American Library Associations’ L. Ray Patterson Copyright Award, and he was later honored with the 20009 Champion of Intellectual Property by the Intellectual Property Section of the District of Columbia’s Bar.[iv]

The authors approach Fair Use with the view that it should be embraced by content creators. This doctrine has long been within copyright law, and it is frequently misunderstood and interpreted. The authors strike out against the popular belief that copyright law is a dinosaur and ineffectual in the digital world[v].

The plain language and element-by-element nature of this book makes it appear to be written for content creators, not well versed in copyright law. The book presents the essential points of copyright law in a way that intends to make it palatable and understandable by creators, rather than legal professionals. Simultaneously, this book strikes against commonly-held beliefs regarding Fair Use, making it appropriate for those in the scholarly communities that address copyright. Despite the non-technical nature of the book, it is an accurate and concise review, making it ideal for use by lawyers seeking to understand the Fair Use doctrine when defending content creator clients in litigation.

Analysis

The book can be simply described as being divided into two sections. The first section provides a history and development of copyright law both in the United States and abroad. The second half of the book provides codes of best practices that content creators should utilize when making a determination of what and how much prior material is utilized when engaged in their pursuit. These codes, developed by creative communities, serve as a measuring stick for content creators in their use of others work.[vi] Through ten chapter and several appendices, the book clearly outlines the need for a Fair Use doctrine, the history of the doctrine, its appropriate usage, and the pitfalls which many creators face in its use.

The first chapter of the book, entitled “The Culture of Fear and Doubt, and How to Leave It”, provides an overview of the culture of fear felt by many content creators due to a misunderstanding of the Fair Use policy and how to interpret it.[vii] The authors state the need for the reclaiming of Fair Use, stating that there is a “poor fit” between copyright policy and the actual practices of content producers. They open their book with a stated desire to construct “a saner copyright policy.”[viii]

Chapter two, entitled “Long and Strong Copyright: Why Fair Use is so Important,” looks at what may happen if too much of the battlefield is provided to those seeking strong copyright protection. The authors contend that freedom of copyright, or at least a balance in it, will allow for culture to develop. Too much control in the hands of copyright owners will stifle creativity and expression. The authors point to the Fair Use doctrine which they hold has more bite than previously thought. In this chapter two types of Fair Use are examined. The first is the right to use copyrighted material for personal purposes. The other is the re-use of copyrighted material in the process of making something else[ix]. This is the type of Fair Use that the book hopes to guide content creators when selecting what, and how much to re-use.

Finally, this chapter begins the historical evolution of the Fair Use doctrine, that continues for much of the book. The chapter looks back to English law, beginning the Statute of Anne. This was a government’s first attempt to begin to regulate copyright.[x]

Chapter Three, is titled “The Decline and Rise of Fair Use: The backroom story”. It begins with Fair Use losing it’s footing on the battlefield of the copyright war, and going into retreat. In 1955, a Los Angeles Federal Court held that parodies are to be treated no differently than any other form of copying or taking, and should not fall under the Fair Use doctrine. [xi] The chapter moves on to look at the changes that occurred in the 70’s, including the copyright act of 1976, which continued to give power to the copyright holders, and caused content creators to stay away from the Fair Use safe harbor.[xii]

Chapter Four, “The Decline and Rise of Fair Use: The Public Campaigns”, highlights the resistance taken by many groups to the growing power of the copyright owners. Cultural studies scholars, acting as public officials, helped to shape anti-copyright sentiment and may have accidentally tipped the scale of power of Fair Use to the side of the content creators.[xiii] This chapter highlights the various books and institutes challenged the existing widely held beliefs regarding copyright, and serves as a review of the publications that emerged during this time.

Chapter Five is titled “Fair Use Resurgent”. It is this chapter that the authors position becomes clear: Fair Use allows for cultural progress and growth via modification, reuse, and adaptation.[xiv] This chapter highlights that this issue has become important to younger generations, and in 2010 the Washington think tank Public Knowledge held the worlds first Fair Use Day, to highlight its importance in the American society.[xv]

Chapter Six entitled “Fair Use in the Courtroom: How Judges Think Now” explains the awaking the courts are having with regards to Fair Use doctrine. It serves as an overview of several crucial legal battles in which the courts focus on the Fair Use portion of the law, rather than the economic interests of the copyright holder. The chapter concludes that there is a tangled relationship between the law and practice. The authors’ indicate that judges and even the Supreme Court not only look at the four factors, but also ask what people are actually doing with the material and how it fits into the larger practice.[xvi]

Chapter Seven is entitled “Documentary Filmmakers: Pioneering Best Practices”. It takes a case study look at how Fair Use has affected one group of content creators: Documentary Filmmakers. A look at Aufderheide’s list of other books tells that she is very interested in this particular sub-set of content creators. In 2007, she published a booked called Documentary Film: A Very Short Introduction. This chapter highlights how the documentary industry created a code of best practices that their members can use as a tool for determining how and when to apply the Fair Use doctrine for their content creation. The creators of this code, had to balance the rights and wishes of the content creator, with those who want to re-use preexisting works.

Chapter Eight, is entitled “Codes of Best Practices Catches on”. This chapter takes a similar view of the code of best practices, this time applied to media literacy teachers. This chapter urges that change should come from a social movement amongst groups of people and cannot solely be relied upon legal precedents. The authors argue that these groups of documentarians and teachers, while making headway in the battle against strict copyright control, are not enough to turn the tide in favor of Fair Use. The authors message is clear: the community of those adopting Fair Use best practices must grow in order to see widespread change, and a shift in the status quo.[xvii] The chapter concludes that when Fair Use becomes easier, friction in the marketplace transactions will be reduced, copyright holders will not lose money, and in fact will gain under this new regime. An example presented of gain for the copyright holders is that under Fair Use, their work is more likely to be repeated, and thus they will gain more publicity. The main benefit promoted in this chapter is that more culture will be created with less fuss. [xviii]

Chapter Nine is titled “How to Fair Use”. If only one chapter in this book is read, this one should be it. It seems that the previous chapters lead up to this chapter by providing the historical background content creators need to understand, in order to understand the current state of copyright. This chapter provides a step by step outline for utilizing Fair Use in content creation or when developing a code for determining best practices for use in future protects of a similar nature. The authors contend in this chapter, that in order for the content creator to understand their current rights regarding Fair Use, they must understand the historical development of the laws surrounding it. The authors also urge that change will come from those creating content, and not by the business surrounding content which serve to stifle Fair Use by increasing copyright protection and downplaying the effectiveness of the Fair Use factors.[xix]

The book concludes at Chapter Ten. It is entitled “A Note on the International Environment”. The chapter holds that international interest in limitations and exceptions will be beneficial for the growth of content creator communities within the United States. The chapter indicates that the growth of these communities will allow other communities, similarly engage, to continue their work, expand, and meet their goals with greater ease.

The chapter concludes that even in different copyright regimes, understanding and exercising the rights of the people are entitled to is a healthy response to long and robust copyright regimes.[xx]

Throughout the book the authors offer several breakout questions. The questions pose a scenario which frequently places the reader in the role of content creator. After reading through a fact pattern, the reader is left with the question of what do to next. While this was interesting, by the time the reader reads through the problem posed in the breakout, thought about their response considering what was just postulated in the book, and then read the answer in the back of the book, a considerable amount of time could have passed. Time in which the reader could totally forgot about the place they left off.

One recommendation to overcome this hurdle would be to place the answer directly in the section in which the question is posed. While flipping to the back of the book and searching the answer and reasoning in the appendix certainly adds to the thrill and hunt for knowledge, it creates a chore, which could be alleviated through placement of the answer within the chapter.

One of the few criticisms of this book is the author’s choice to not cite where the four factors of Fair Use come from. These four factors are mentioned throughout the book, however never explicitly referenced to their place in the US code. These four factors are codified by statute in 17 USC §107. This portion of the US Code outlines that the Fair Use of copyrighted work includes the use of reproduction for use in criticism, comment, news reporting, teaching, scholarship, or research. The code goes on to indicate that the four factors should be applied to the particular case in question in determining whether the use made of work in any particular case constitutes Fair Use[xxi].

Another minor criticism of this book is that it presents only a pre-emptive solution for determining Fair Use. The book urges that creating best practice codes, based upon the four factors will prevent most copyright infringement instances. The book does little, maybe purposely, to examine how one might defend against an infringement claim, and one of the four factors is not actually met. This is a minor critique and does not detract from the message of the authors.

Evaluation

There is much to like about this book. The book identifies a problem, discusses the historical context in which the problem arose, provides a solution, and answers criticisms on why that solution, while implemented currently, needs more support in order to become really effectual.

This book is concise and provides a clear solution, something not often provided by scholars and academics.

The authors of this book hold that the factors of Fair Use are much more encompassing than previously believed by scholars in the copyright arena. This book affirmatively demonstrates that the Fair Use doctrine is a not-so secret weapon that content creators can use in their battle in the copyright war.

The authors reinforce this contention through the work with groups of content creators and their endeavors to create actionable best practices to guide their Fair Use content selection.

The Appendices dispel misnomers felt by the content creator community regarding intellectual property law, and create a tool which will enable the reader to find others best practices, and develop their own.

While the singular reliance on the four factors and a code of best practices was previously criticized in this review, it is an accurate demonstration of tools utilized in industry when making difficult choices on how to proceed in content creation. Frequently practitioners look to industry standards and “go-by” examples. These codes of best practices are simply that.

Finally, this book may be seen as a useful tool in its references. The authors have drawn from, and cited several sources, saving a would-be scholar hours of research in the topic. From the citation page, one can go directly to the research the authors have provided reference to. Because the authors have provided this level of detail, the book is a great educational tool.

This book is a valuable contribution to debates and discussions surrounding the Fair Use and should be utilized by content creators. Reclaiming Fair Use makes the battlefield, seem not as daunting, and possibly a war that can be won by the content creator.

[i] Copyright Act of 1976 § 101, 17 U.S.C § 107 (2012).

[ii] Patricia Aufderheide & Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright xiii (U. Chicago Press 2011).

[iii] Faculty Profile: Patricia Aufderheide, http://www.american.edu/soc/faculty/paufder.cfm (last visited Nov. 15, 2016).

[iv] Faculty Profile: Peter Jaszi, https://www.wcl.american.edu/faculty/jaszi/ (last visited Nov. 15, 2016).

[v] Stewart Alsop, Copyright Protection is for Dinosaurs, Fortune Mag., Apr. 26, 1999, http://archive.fortune.com/magazines/fortune/fortune_archive/1999/04/26/258732/index.htm.

[vi] Ass’n of Research Libraries, Code of Best Practices in Fair Use for Academic Research Libraries 1 (2012).

[vii] See Aufderheide & Jaszi, supra note 2, at 1-16.

[viii] See id. at 15.

[ix] See id. at 18.

[x] See id. at 26.

[xi] Benny v. Loew’s, Inc., 356 U.S. 43 (1958).

[xii] See Aufderheide & Jaszi, supra note 2, at 35.

[xiii] See id. at 55.

[xiv] See id. at 72.

[xv] See id. at 70.

[xvi] See id. at 93.

[xvii] See id. at 108.

[xviii] See id. at 126.

[xix] See id. at 127-148.

[xx] See id. at 154.

[xxi] 17 U.S.C § 107.