[Comedies of Fair Use] The Permissions Maze

Andrew Raff
May 01, 2006

Susan Bielstein (U of Chicago Press):
As a pubsliher/editor she has come to develop a somewhat inverted view of fair use

Authors trying to insinuate themselves into the world of high crime-- little problems writ large-- once authors come to understand that fair use is not an inalienable right, but a legal defense. The doctrine ultimately gets worked out in a court of law, not the editor's office.

1. The cost of doing battle is hardly worth it for scholarly editors/authors-- the amount of sales/$$ is peanuts. It's never worth it for the used copyright holders to go to court. What the editors do get are lots of cease & desist letters.

Publishers want to avoid legal battles if at all possible-- even silly ones that they'd easily win.

2. With the rampant commidifcation of culture, it is now assumed that something that is anything must be worth something. Everything is IP. So, the members of the Fourth and a half estate have become incredibly jumpy. The reason they are so jumpy is that (c) claimants come after publishers, not authors. So publishers are complicit in stretching a system of legal interests into a system of legal overreach.

3. A system of balance is disappearing-- it doesn't make for good comedy or news. But there's a need to balance the rights of property owners and the rights of users.

Don't expect publishers to take the lead. The authors need to-- come up with policies to support fair use and defend that position. Then scholars may have their day in court-- they'd probably win.

Geoff Dyer:
Kind of hoped that Hemmingway estate would come after him for "sampling" from Hemmingway, e.g:
"it was raining hard outside"
"He took a big gulp of coffee."
Are they identifiably Hemmingway? [Beyond de minimis and protectable?]

Authors have to bear the cost of clearances. (in abook of 120 images, attempted to do a fixed rate at $100/image.) But that didn't work, so there would be a need to negotiate with 120 different institutions/pphotographers. Some were very helpful. Some people, their demands were so excessive.

The last panel discussed the difference between academic and commercial use. As someone published by a commercial, for-profit company, but whose books have never made publishers any money, but still charged the higher (for-profit) rates.

Suppressing the desire to whine about the process. Except for his experience with the Diane Arbus estate. The estate asked to see what he wrote. Responded denying permission because of "factual errors"-- or interpretations that the setate simply didn't like.

Allan Adler:
The (c) act uses research, scholarly and educational uses as different uses. So, individuals are forced to figure out what the difference is between those uses.

When we talk about not-for-profit entities, can we really include places like NYU that charges undergrads $40k for tuition? We need to realize that there are for-profit entities that can engage in not-for-profit activities and not-for-profit entities that engage in for profit activities.

There are no per se fair uses, but the courts and Congress require there is a situational application for the 4 §107 fair use factors. Aren't there any rules of thumb, a bright-line way of determining what is fair use? Nope. There are likelihoods, but no certainties.

Harper & Row v. Nation Enters., 471 U.S. 539 (1985)-- the most newsworthy aspects of the work and the commercial value already realized in serliazation rights.

Think of it in terms of the Golden Rule-- ask yourself as your are about to make a fair use, would you feel if that use should be compensated are require permission. If people are trying to act reasonably, that's not such a bad way of thinking of it.

What about that situation where you think you need permission, but don't know how to go about finding it. You have a reason to believe the work may still be under copyright, but it might not have been renewed. You may not know if those people did the renewal or if there was a reversion of rights. It's not the works that have been orphaned, but the uses of those works that have been orphans.

Earlier this year, the Copyright Office released a report on the orphan works problem.

Publishers sits at the table not just as owners of copyrighted works, but as users of copyrighted works.

Problem of embedded works-- attempting to license an electronic version of a chapter of a textbook that includes third-party photos/charts that are licensed only for the print version. So, how does a school get these rights if the publisher can't grant the rights?

Role of Fair Use norms. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990). If you recast it, then that use can be considered transformative. If it is a mere repackaging or duplication, that simply supercedes the original work.

Also think about the relationship between contract and copyright. Contracts are a set of rules that only apply to the parties who agree to have their actions bound by the contract. one can easily contract away one's fair use rights. in a digital context, a license often goes up against the black latter law of copyright.

James Boyle:
"I am the person who stands between you and lunch.… Let me lower your expectations before I even begin. "

Law here is being pressed into service to deal with a set of concerns for artists which have little to do with the law. Almost all who spoke talked about law as anything other than a second-best situation. (c) law is based on a utilitarian view of production of works and is hostile to the moral rights of authors and creators.

Law is being used to address a series of deep cultural divides that it may be unable to overcome, or even the ability to state these issues. Fair use isn't going to solve those issues for you, neither will copyright law as a whole.

Tradition of copyright law is very different from the tradition in the French tradition (droit de auteur). There are many countries on the WWW.

If the law could reach decisions quickly and costlessly, it would be very different. Private parties are really setting the bounds of the debate and these parties may not actually be the parties involved. In the film world-- it's the gatekeepers who stand between the filmmaker and distribution who just clear everything and won't let the filmmaker claim fair use. [The actual level of fair use in action is less than the bounds of the law.] For example-- Boyle was thwarted from photocopying his own article for his class by the BU copy room for lack of a written license.

One of the most important factors: is there a market for the use? An assertion of control over no matter how tiny-- can create a market for licensing a small fragment. The difficult thing is, the most prudent thing to do is say that it is fair use. Feedback loop of creating a market for everything. That spiral is largely outside the control of courts and Congress.

You might imagine that copyright law has no purpose other than full employment for lawyers, but it does have a purpose. Copyright law is being given a bad name by its ridiculous hypertrophy. Copyright law has morphed in all kinds of ways that are stated in the copyright Clause or the intent. Now fair use, which was meant to be a help on certain problems, but now fair use is stuck trying to step in as a check for overreaching (c) owners.

The ideas within fair use are fundamentally sound. The way the law exists as a philosophy is very good, but the way that Congress and users are extending it. We need to reclaim copyright law-- to take it away from something that it used to be (a contract that affected industry and stakeholders-- drafted by the reps of the various industries.) It's not a system that works, either on the books or in practice. Today, copyright law affects more people at more times. Previously, you needed access to a printing press to set off copyright. Today we make copies all the time as part of our daily, everyday work. so more people than just the major stakeholders are affected, and so agreements between the industries is not enough.

Sometimes where we have situations where the First Amendment comes into conflict with Copyright. For example, a case where Mein Kampf was published in the US in an abridged English translation that omitted some of the worst passages. Senator Cranston published a translation of the entire German work-- it was the whole thing, and there was a strong interest showing that it was fair use.

We've put a lot of these issues in the context of freedom of expression. Most other countries don't have freedom of expression.

Lawrence Lessig:
What method might we adopt for resolving what we all see as a real problem?
One way might be to look at the subjective feelings at the people involved. That way just can't make sense of the way the system works now. sometimes we're really attentive to the subjective perspectives, and sometimes we aren't.

We should think about what the consequences for creativity of a particular regime. The Woods case radically changed the way that film gets made. Lawyers now create massive books of all references in the film to get E&O insurance. If you're George Lucas, so what? But if you're a documentary filmmaker or someone attempting to do cheap distribution, they can't afford to do all these clearances and can't distribute without E&O insurance.

We need to think about what the systemic consequences of a particular system of protecting rights.

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