[SIGCIS-Members] Copyright advice sought

Michelle C Forelle mcforelle at gmail.com
Sat Jul 14 19:24:26 PDT 2018

Hi all,

Thought I could contribute some useful info, with some help from my
colleague and fair use expert Patricia Aufderheide. Given the amount of
misinformation large media corporations and software associations have
purveyed over the years, it's no wonder there's a lot of confusion about
fair use. Some things to keep in mind:

1) Fair use is a right, as the Supreme Court has recognized affirmatively,
and its technical designation as a defense doesn't make it any less of a
right. Your right to self-defense is a right, although it is a defense.

2) Fair use isn't complicated to interpret, in most common cases. In fact,
you probably used fair use today without thinking about. Every time we
quote another scholar in our work, that's fair use. Every time search
engines temporarily copy documents to scan them for relevance, that's fair

3) The Codes of Best Practices in Fair Use, which are available at
csmsimpact.org/fair-use, are extremely valuable for providing user-friendly
logic for fair use in specific disciplines. They exist for communications
research (might be the most pertinent for the original question), documentary
film, media literacy, visual arts (as noted in this thread), journalism,
film studies teaching, open courseware, nonfiction writing, museums and
archives facing orphan works problems, and film studies research.
Forthcoming is a best practices code on software.

4) To echo SamR's comments, of course judges can find that a use is not
fair, just as they can find that a use is obscene, or defamatory, or
treasonous. That doesn't make the First Amendment any less real as a
result. This is why Codes of best Practices are so helpful--they show what
is generally accepted in a field already, and therefore unlikely to be
found outside the acceptable in court, and therefore unlikely to draw any
legal action from a copyright holder. Risk is a known feature of expression
and of life in general. So the question is not whether you are risk-free
(unless you don't want to express yourself at all), but what the risk is.
Having consensus codes of practice is a way of vastly lowering risk.
Documentary filmmakers found that it lowered risk so dramatically that
insurers changed policy 180 degrees from "no" to "yes" on insuring against
fair use claims, once they knew the expectations of the field, through the
filmmakers' code.

All of this and more is covered in a very handy book by Aufderheide &
Jaszi, *Reclaiming Fair Use: How to Put Balance Back in Copyright*, 2d ed.
(University of Chicago, 2018), which I highly recommend for anyone with
questions about the details of how this works in practice.

On Sat, Jul 14, 2018 at 3:51 PM Rebelsky, Samuel <REBELSKY at grinnell.edu>

> I am not a lawyer, but I'm pretty sure that fair use *is* explicitly
> stated as such in law, at least in US law, which is what we seem to be
> discussing.  Let's see … Section 107 of Title 17 (the section of US Law
> that specifies copyright) says
> 107. Limitations on exclusive rights: Fair use
> Notwithstanding the provisions of sections 106 and 106A, the fair use of a
> copyrighted work, including such use by reproduction in copies or
> phonorecords or by any other means specified by that section, for purposes
> such as criticism, comment, news reporting, teaching (including multiple
> copies for classroom use), scholarship, or research, is not an infringement
> of copyright. In determining whether the use made of a work in any
> particular case is a fair use the factors to be considered shall include—
> (1) the purpose and character of the use, including whether such use is of
> a commercial nature or is for nonprofit educational purposes;
> (2) the nature of the copyrighted work;
> (3) the amount and substantiality of the portion used in relation to the
> copyrighted work as a whole; and
> (4) the effect of the use upon the potential market for or value of the
> copyrighted work.
> The fact that a work is unpublished shall not itself bar a finding of fair
> use if such finding is made upon consideration of all the above factors.
> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.copyright.gov_title17_92chap1.html-23107&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=gLmFIE41kMWux-imJ1ctjhAEbTmwP42UpKc7op3eBu4&e=
> However, as you say, whether or not something counts as fair use is not
> specified clearly.   So, while the government cannot take away an
> individual's fair-use rights without changing the law, a court case can
> determine that a particular use is not fair use.
> I would suggest that what counts as a 'creative work' and therefore
> eligible for copyright is also not stated clearly.  Certainly, there have
> been questions of whether compilations of information, like phone books, or
> mostly factual things, like maps, are subject to copyright protection.
> And, in the end, no one has the "right" to copyright, except as stated in
> the law.  If Congress changes copyright law, those rights change.
> Regards,
> -- SamR
> Samuel A. Rebelsky, Professor of Computer Science
> Grinnell College, 1116 8th Avenue, Grinnell, Iowa 50112
> Office: 641-269-4410 ; Fax: 641-269-4285 ; Cell: 641-990-2947
> rebelsky at grinnell.edu ;
> https://urldefense.proofpoint.com/v2/url?u=https-3A__www.cs.grinnell.edu_-7Erebelsky_&d=DwIGaQ&c=clK7kQUTWtAVEOVIgvi0NU5BOUHhpN0H8p7CSfnc_gI&r=EkYeLh1UEDKgmiWNbN5Nrg&m=FZjkziSAqmxuqrE6iRV_v62YWJ1KacVHjB7dTDOfCnQ&s=MAME_6D4O2rG6y2jczqLumU20qLLXVyUrlxb5Bi_z_A&e=
> The opinions expressed herein are my own, and should not be attributed to
> Grinnell College, Grinnell's Department of CS, SIGCSE, SIGCAS, any other
> organizations with which I am affiliated, my family, or even most sentient
> beings.
> > On Jul 13, 2018, at 8:49 AM, Kimon Keramidas <kimon.keramidas at nyu.edu>
> wrote:
> >
> > Just a point of clarification, fair use is not a right like copyright is
> as it is not explicitly stated as such in law. Rather it is an exception to
> copyright that has been provided by judicial precedent and has been roughly
> outlined in copyright law but is purposefully not clearly bound. This
> difference is just important to know as you move forward with concerns such
> as this and are dealing with legal situations and specific terminology.
> >
> > It’s kind of like driving. No one has the right to drive. The government
> provides the opportunity to get a driver’s license and it can be taken
> away. Fair use tenets can be violated as such if they are determined to be
> overstepped by a judge and one can then be in violation of copyright.
> Copyright however is automatically given to the creator upon recording of
> an expression in a material form and is a right that cannot be taken away.
> >
> > Cheers
> > Kimon
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Doctoral candidate
USC Annenberg School of Communication
@mcforelle on the tweet machine
(407) 864-2225
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