For the next few days I will be attending the Campus Technology ‘08 Conference. I am signed up for a number of panels on some rather interesting topics. I’m sure I’ll be picking up a few new ideas that I’ll be sure to share here. If you’re going, feel free to say hi!
Fair Use is the phrase for a collective set of exemptions allowing the use of copyrighted works without the permission of the rights holder, or the payment of licensing fees. Fair Use exemptions were codified to allow for limited use in cases where the value of the use outweighs the value to the rights holder. Examples of fair use include use of a work for commentary purposes, educational uses, limited transformational cases, some archival needs, certain parody uses, and so on. Qualifications for Fair Use come under a four-factor test:
If all of this sounds vague, that’s because it is. There is no clear definition as to what qualifies as fair use. Most people agree that copying an entire work is not fair use, even if you are using the copies for educational purposes. Other than that, it’s hard to say how much you can use, where and how you can use it, etc. Most of the four factor test comes down to a certain measure of common sense: Why am I using this work? Can I use a different work instead? How many people am I sharing this with, and to what purpose? Am I costing the rightsholder any sales, or diminishing the brand or value of the work?
No one has yet come up with a concrete definition of Fair Use. There are lots of resources to help you decide if what you are doing is justified. There’s this checklist that will help you document your case for fair use. And there’s also more specific resources, like this code of best practices for use of video material. As always, when in doubt, talk to your librarian, as they are often the local expert on this. You might also talk to your local Intsructional Technologist or even your Academic Lawyer.
As a follow up to my last post about Orphan Works, questions have been asked as to what is or isn’t covered by copyright, and for how long.
Michael Brewer in conjunction with the ALA, developed a slide rule style tool, available at http://librarycopyright.net/digitalslider/ that should help with a lot of these questions. Of course, if you are a fan of the old slide rule technologies, you can also get a paper version of this tool. You may purchase it from the ALA at http://www.wo.ala.org/districtdispatch/?p=421.
Recently, the topic of Orphan works has heated up. It has shown up all over the place, including in two sources that I follow that focus on legal rights in the digital world, Public Knowledge (which I’ve only recently started following), and Rules For The Revolution (which Ihave followed since its inception). Orphan works are creative works where the copyright holder, usually the creator or the creator’s company, cannot be identified or located, but the work is not necessarily in the public domain.
This problem can be especially pernicious where visual or auditory materials are concerned, as written materials are far more likely to include the creator’s name. The quantity of works that have been ‘Orphaned’ has grown massively in the past 50 years, as copyright term has been expanded to near ludicrous levels, and since 1978, copyright has been automatically granted to qualified works (and after 1989, doesn’t even require registration to defend that automatic copyright).
The big problem with orphan works is that copyright infringement now carries with it massive statutory (preset, unavoidable) fines. The fear of incurring these fines has what is referred to as a ‘chilling effect’ on innovation, making individuals and companies shy away from creativity and innovation involving these works. Given that copyright was originally developed to protect creators so they would be given more incentive to create, it is a clear sign that the system is has fallen down when it does precisely the opposite.
Public Knowledge has championed new legislation to create a safety valve for orphan works. They would like to protect against statutory fines by giving creators a chance to show that they did a diligent search for the original copyright owner. If they can show this (by following certain regulations and procedures when they go to use the orphan work) then they will be exempt from statutory damages, but will still need to pay market appropriate license fees to the copyright holder, should they turn up.
Sounds good, right? Perhaps. I tend to agree more with Professor Lawrence Lessig, a professor who has made quite the name as the founder of the Stanford Center for Internet and Society (Harvard has their own Berkman Center for Internet and Society, that he has also taught at), and as a board member of both CC and the EFF. The Orphan Works initiative pressed for by Public Knowledge is an attempt to treat the symptoms, rather than the cause of the problem. Copyright has become an untenable mess, that now serves more to protect the profits of large organizations like the RIAA, MPAA, Disney, et cetera. Copyright was intended to protect the small guy from having his creative rights stolen and repurposed by the large guy, and now the opposite seems to be happening. Undo the excessive expansion of terms and rights, and go back to the original purpose of copyright.
I do understand that Public Knowledge is attempting to make reforms from within the system, and that the efforts they are undertaking are far more likely to be successful in congress, and are more likely to be let through by the lobbyists on the hill. I will be happy when they do get their legislation approved and passed. But I’m still going to voice my support for the approach I feel is ‘correct’, because eventually I feel the problems will need to be addressed directly, and not just the symptoms.
Are you a visual learner? Auditory? Do you have a hard time understanding some of the concepts in modern technology, like Podcasting, Twitter, Social Media, RSS, Blogs, etc? Then might I suggest you take a look at one of my new favorite sites explaining all this and more in a visual format using videos of little paper cutouts. It’s called CommonCraft. The CommonCraft Show is where you can find all of their free works, and if you like them, you can also obtain the videos from the CommonCraft Store, where you can download licensed versions to use yourself.
As a sample, here is CommonCraft’s video on Podcasting:
