Abstract
The historical journey of fair use has long been a fascinating topic, as it has been challenged and changed by the dynamics of evolving media over the decades. Authors Patricia Aufderheide and Peter Jaszi set out to track that journey, as well as looking toward the future of where fair use may go, in their new book Reclaiming Fair Use: How to Put Balance Back in Copyright.
The authors use a three-prong approach in their presentation, first detailing the history of where fair use began and how it’s changed over the years. Next, they present strategies of how to utilize fair use in your own use of copyrighted material. The debate between copyright owners and creators utilizing fair use is ongoing, and there is not yet a quick and easy solution that will balance the two. However, the conversation of fair use must be encouraged. Aufderheide and Jaszi reframe the ongoing debate such that a balance of respecting copyright and encouraging fair use can coexist and the conversation can continue.
Aufderheide and Jaszi are well-suited to present on this topic, as they are experts in fair use and copyright law. Drawing on this vast knowledge, they have created a primer for those who were previously unaware of anything regarding fair use, while also presenting historical context for researchers who are very familiar with the evolution of fair use through the courts, best practices, and public perception. Utilizing copyrighted material is no longer confined to certain creative populations, especially with the quick and widespread access to media online. Becoming familiar with fair use and its implications on the larger copyright conversation is necessary for everyone.
The book takes its readers through a logical journey to teach about the history of fair use, what its implications on society has been prior and currently, and how consumers can utilize fair use going forward. Aufderheide and Jaszi highlight the importance of fair use, as well as how its been used as both a tool for good as well as a source of fear. The authors specifically mention how documentary filmmakers will often cut out scenes that hold copyrighted material because the process of clearing copyright is long and ultimately not fruitful for them. And how most YouTube uploaders, when faced with a takedown notice, let the matter go and do not fight it. This occurs even if this usage is within fair use because the creators perhaps don’t understand where they stand in regards to the law. And that is why education on the topic is so important. Media consumers need to know what the framework of fair use is and how they can utilize it, as they maneuver in the land of abundant media availability.
Through the chapters, we get highlights of fair use in media consumption as well as in the courts. While the cases might be well known to fair use researchers, Aufderheide and Jaszi seek to delve deeper and give a more complete history of how fair use has changed and been adapted based off changing media usage. And they delve into the adoption of best practices in a number of different creative and educational communities, such as documentary filmmakers, librarians, and research scholars. Each of these best practices guidelines helps to refine and clarify fair use in society and helps the population understand what fair use means for them. In addition, the authors have included “test yourself” examples throughout the book to see if the reader can spot fair use versus copyright infringement. This is very beneficial in connecting reading to learning and solidifies the content for the reader.
Aufderheide and Jaszi make a number of arguments in their exploration of fair use, supported by the historical evolution of fair use in law and application. First, they provide the groundwork by explaining why fair use is such an important part of copyright law and why everyone should be aware of it. The current state of copyright, weighted toward owners rather than creators, creates a vacuum in culture and does not allow it to evolve naturally. If the balance is not restored, then both passive fair use and productive fair use could be in jeopardy.
Next, the authors look at the decline and resurgence of fair use both behind the scenes and in public campaigns. They highlight the impact of fair use becoming a part of the Copyright Act, which moved copyright from regulation to a defense of property rights. The ensuing legal cases that emerged from this, all detailed very well in the book, shows how copyright owners sought to exert their hold over their material, sometimes at the detriment of societal change. Aufderheide and Jaszi also highlight the use of fear that permeated copyright educational materials early in the 21st century, which often made those who sought to utilize fair use question if they were allowed, so they wouldn’t proceed. This fear mind-set has lasted and the understanding of fair use continues to be muddled.
However, perhaps the tide of fair use is turning back toward transformative creators and that can have positive effect on cultural evolution in the future. The authors note how remixers, mashup artists, vidders, meme makers, and others have utilized social media to share their works and spread its impact. In addition, they bring forward the fact that YouTube, another platform used by creators of transformative works, will send takedown notices to those who have allegedly violated copyright, but will also recognize fair use defense. This recognition reflects the growing investment YouTube has in user-created content. And officials in law and government have also increased their knowledge and recognition of fair use as a legitimate component of cultural exchange which should not be unduly constrained.
Overall, Reclaiming Fair Use: How to Put Balance Back in Copyright is an interesting entry into the exploration of fair use. It is a valuable approach in that it is accessible to both those completely unfamiliar with fair use as well as those who are well-versed in the field. Two main strengths of the book and its contribution to the field are in its arguments for best practices and international discussions. Misinformation and confusion about fair use still exists, but the increase in best practices across groups has helped. And while some creator groups still do not have their own best practice guidelines, that doesn’t mean they can’t. With a few coordinators and more contributors, guidelines can be created. These guidelines continue to evolve and strengthen fair use across creative and educational groups. In addition, the discussions in the United States, regarding fair use, has affected copyright policy internationally. While copyright is globally complex, some commonality is possible as the discussion continues to evolve. These areas, as well as the book’s focus on them, can help promote and expand fair use now and in the future.