international conference april 27-29, 2007 mit
Copyright, Fair Use and the Cultural Commons
Saturday, April 28, 2007
How has the American tradition of intellectual property law understood the relationship between originality and tradition? What rights do artists and educators have to draw inspiration from or comment on existing works in existing media? What habits, beliefs, legal and policy decisions threaten the emergence of a more participatory culture? What have people done, and what can we do to protect the Fair Use rights of artists, educators, and amateurs so that explore the opportunities created by new media and a networked society?
Hal Abelson is professor of electrical engineering and computer science at MIT. He is engaged in the interaction of law, policy, and technology as they relate to the growth of the Internet, and is active in projects at MIT and elsewhere to help bolster our intellectual commons. Abelson is a founding director of the Free Software Foundation, Creative Commons, and Public Knowledge and serves as consultant to Hewlett-Packard Laboratories. email
Patricia Aufderheide is a professor in the School of Communication at American University where she also directs the Center for Social Media . She is the author of several books including Documentary: A Very Short Introduction (2007), The Daily Planet (2000), and of Communications Policy in the Public Interest (1999). She has been a Fulbright and John Simon Guggenheim fellow and has served as a juror at the Sundance Film Festival. She received a career achievement award in 2006 from the International Documentary Association. email
Wendy Gordon is a professor of law and Paul J. Liacos Scholar in Law at Boston University. In many well-known articles, she has argued for an expansion of fair use utilizing economic, Lockean, and ethical perspectives. email
Gordon Quinn is president and founding member of Kartemquin Films where for over 40 years he has been making cinema verite films that investigate and critique society by documenting the unfolding lives of real people (i.e., Hoop Dreams, 1994). Quinn is working on Milking The Rhino, a film examining community based conservation in Africa and At The Death House Door, a film on a wrongful execution in Texas. email
William Uricchio is co-director of Comparative Media Studies at MIT and professor of comparative media history at the University of Utrecht in the Netherlands. His most recent book is Media Cultures, on responses to media in post-9/11 Germany and the U.S. email
By Greg Peverill-Conti
[This is an edited summary, not a verbatim transcript.]
William Uricchio began by providing an overview of the roots of the debate around intellectual property (IP) protection. In early 18th century England, the Statute of Anne, which formed the basis for U.S. copyright law, transferred copyright protection from the publishers – who had enjoyed a royal monopoly in perpetuity – to the creators. This protection was good for 21 years with a 14-year extension.
This change provoked a robust response from the publishing industry and a whole series of court battles followed. One English case in particular, on the eve of the American Revolution, was Donaldson v. Beckett (1744). It had to do with the reach of the protection afforded creators and the publishers attempt to regain control of works for themselves. The courts decided that the publishers desire to regain control in perpetuity were not in the publics' best interest.
This outcome – as was the case of the Statute of Anne – was reflected in the U.S. Constitution in its ideal of promoting science and the useful arts by providing to their authors and inventors the exclusive rights to their writings and discoveries.
So what did this protection look like in 18th century America? Copyrights lasted for 14 years (with a 14-year extension) in a time when it took days – or even weeks – to go from Boston to New York.
Now we live in an age of endless rights and extensions. Something is amiss. Bizarrely, the faster information circulates, the longer copyright protection lasts. This seems at odds with the intentions of the framers and the case law upon which they based their thinking. We're back to the 18th century debate; back to the battle between creators' rights and the industry, back to the battle of limited protections versus what seems like protection in perpetuity once again.
In light of what is being discussed at MiT5, it is important to ask what the new era of IP will look like.
With that, Uricchio introduced the panel.
Wendy Gordon introduced a film on best practices for fair use that was created by a coalition of documentary filmmakers spearheaded by fellow panelist Pat Aufderheide. Before showing the film, Gordon provided some context.
Copyright, despite its name, came into being as a set of liberties for the public as well as a set of rights for the author. The three most important liberties are the liberty to use ideas, the liberty to use facts and the liberty to make a fair use of expression from prior works.
It is difficult people to use all of the liberties that the law provides because you need to have the physical, financial and emotional wherewithal to use them. You know the old line, “the rich and the poor are equally free to sleep under bridges”? You don't need a lawyer to take advantage of some of the liberties provided by copyright.
The approach that Aufderheide and others have used successfully is to create coalitions. These coalitions can gain and build support from other, unexpected quarters; the insurance industry, for example. To get support, and to have full rights under copyright law, individuals and organization need to think about three things: creating coalitions to consider and address the issues; courage in terms of standing up for one's legal rights; and new customs that can be pointed to when challenges are made.
Our free speech rights aren't always exercised because we often choose the second best option rather than insisting on being allowed our rights. This is a chilling effect driven by fear of the repercussions; but more than that, it creates a custom that allows rights holders to continue to act as they do. It deters not only unlawful behavior but also lawful behavior which people don't have the resources to defend.
So how does one take advantage of fair use? One approach is isolated courage – the art history teacher wanting to include early drawings of an artist he is studying when the artist's heirs might refuse to give permission. Another is to reach reciprocal agreements not to sue. While yet another is to consider the prisoner’s dilemma – where people choose not to act for fear of being somehow singled out. In the case of copyright, once someone makes a cooperative first move – for example, putting content into the public domain – the action can become acceptable and more widely adopted.
The problem with the public domain is that someone may make a change to a work and then copyright it – making it more difficult for people to freely use the original work. In the case of open-source software, the General Public License has solved some of these issues.
What Pat and her group have created is a standard for what documentarians should be able to use under fair use principles. This has caused two things to happen: one, insurance companies (who are the most insistent on everyone receiving permissions) are willing to insure uses without permissions so long as they adhere to the agreed upon statement of practice; and two, fair use judges – who look at the customs of use when making their decisions – are provided examples of acceptable use.
In a recent issue of Yale Law Journal, there is an article by James Gibson entitled, “Accidental Rights.” His argument is that because people in creative industries – particularly documentary filmmakers – are so risk averse, they are buying licenses where they don't really need them. After this unnecessary licensing goes on for a time – and someone comes along and tries to get by on individual courage and fair use – it creates a custom within the industry that reinforces the conservative licensing behavior in the eyes of the courts. It creates a sort of lather, rinse, repeat cycle where fears of being sued leads to more licenses being purchased which leads to suits against those working without licenses leading to more fear, etc.
Gibson's article proposes potential ways to break this cycle but one that he does not suggest is the idea of coalition. It's ironic that in the weeks following Gibson's article saying how risk averse documentary filmmakers have become four insurance companies have agreed to insure filmmakers who follow the guidelines offered by Aufderheide and her colleagues in their film, Fair Use and Free Speech, which explains the creation, content and purpose of the Documentary Filmmakers' Statement of Best Practices in Fair Use document.
Following a showing of the film, Gordon Quinn spoke.
Coming out of the 1960s, people were struggling on many fronts: the war, civil rights, etc. If you look at his early films, which were about these struggles, there was fair use everywhere. Even 20 years ago, he was likely to include content under fair use. Now, though, he's found himself self-censoring because he's lost so many battles. For example, in Hoop Dreams, when one of the boys’ families sings “Happy Birthday,” the theatrical releasing company insisted the song be licensed for $5,000. In a more recent film, The New Americans, a Mexican family was taped singing “Happy Birthday” – in Spanish – butit was removed altogether because Quinn felt they couldn't afford it and he didn't want to fight that legal battle.
At the end of The New Americans there is a moment when one of the immigrants profiled in the film is riding in his car whistling along to George Strait. He's from Africa and he looks out his window smiling. A man pulls up beside him on a motorcycle and gives him a hostile look. For a moment their eyes meet before they look away. All of this happens while George Strait is playing in the background. This wasn't a conscious thing, it just happened to be the music that was playing on the radio. We ended up replacing George Strait with music we could afford to license.
These are both examples of fair use that were self-censored. When Quinn learned about the approach that Aufderheide is advocating – one not based on legal fights – he saw and understood in an instant that it was a fabulous idea.
Quinn has just finished a film on stem-cell research that includes a lot of fair-use content. He has been able to proceed because he knows that it will be insured and that it will be aired by Independent Lens. What he found particularly empowering was the knowledge that he didn't have to go to anyone – the courts, the broadcasters, the insurers - in order to proceed. As a group, documentarians can define standards and best practices for fair use in their works.
Quinn noted that he is on both sides of the issue – he owns rights and he uses rights – and has concerns with how fair use is applied. One example he offered involved a film he did in the 1970s about an 11-year-old girl. Some young filmmakers approached Quinn about a film they were making on Jane, an underground abortion clinic in the 1960s and 70s. They wanted to use his footage to help set the time – a request to which he agreed provided that they would show him how the footage would actually be used in their film. When he saw the finished product he was horrified. The implication – based on the editing and juxtaposition of shots – was that the 11-year-old girl had had an abortion. Quinn did not permit that use of his content.
Concerns around usage are valid but there are new vehicles – like Creative Commons – emerging to help address these concerns and issues. Quinn has found the establishment of best practices for documentary filmmakers to be an exciting development but now he's waiting for the other shoe to drop when the big rights holders come after them.
Hal Abelson spoke next and presented himself as a simple nerd, one intimidated by the creativity of the other panelists. His comments addressed the issue of fair use in academe and the fact that if fair use isn't used it will be lost. People mention the fear among documentary filmmakers – but he assured the audience that they hadn't been afraid until they'd looked at the academic community.
Right now, the very idea of fair use in the academy is threatened because its members are “too chicken” to stand up for it. He offered recent examples to illustrate his point.
The first was a request by an author to use a sentence from on of Abelson's books in his own writing. Abelson – who pointed out that he is not a lawyer – said that he thought the use of one sentence from a 650-page book was probably alright. In his discussions with the author, Abelson learned that this person's institution was expressing concern – and cracking down – on the development and installation of patches in free software.
The second was the inclusion – and ensuing comedy of errors – of a reference to recent research on the effects of alcohol on the anti-oxidant benefits of strawberries on the science blog Retrospectale, written by Shelley Batts, a graduate student at the University of Michigan. Within days, Batts received an email explaining that she'd used copyrighted material and would need a license for its continued use. Batts responded that no threats were needed and that she'd license the content. The reply she received was that she would not be able to license the content after all for a variety of complex reasons having to do with the publisher.
Batts published all of this correspondence on her blog. The following day, she received yet another email saying that everything had been a misunderstanding caused by a “junior member” of the staff. But things didn't end there – the publisher contacted her to say that the real issue was with their relationship with the University of Michigan.
Returning to MIT, Abelson introduced Stellar, the school's course management system. He chose a course in the Literature section to illustrate a concern. The course mixes literature and science to illustrate the growth of the idea of probability. The materials available on the course site are limited to the students in the class and are only made available for the duration of the class. Some of the materials include writings by Aristotle, Pascal and Fermat.
Accessing these materials requires that people identify themselves to ensure they have permission to access. Once a work is accessed, one is reminded that they are using copyrighted materials. Abelson found the idea that Pascal's works are still covered by copyright surprising. Of course, it isn't Pascal's original work that is copyrighted, but the translation of the work that is protected.
Pointing out that there are translations of Pascal that are not under copyright, Abelson asked if we care enough to try to preserve the use of materials in the academic community, or is it something that is just being allowed to slip away?
Abelson has been active in developing the MIT OpenCourseWare program. There are more than 1,400 courses available and in the fall all 1,800 courses will be available online. About one-third of the current courses include third-party content. Because they were scared, MIT decided to make no fair use claims at all. Instead, MIT has licensed, removed or recreated all of the content in question. Of the 80 hours that it takes to produce a course Website, approximately 40 percent of that time is spent dealing with protected content because MIT is not brave enough to rely on fair use.
Universities, he believes, need to rely more on open content and also become more aggressive about fair use of content. The restrictions being placed on usage – particularly the limits placed on students within the bounds of the university – spells the destruction of the university as an intellectual community.
Abelson was followed by Pat Aufderheide, who wondered what the future will look like. She'd like to believe that in two years the entire situation will be completely different. Different because of the model that has been developed of creating codes and standards that can be influential and change practices. While creating the Best Practices for Documentary Filmmakers she learned that “practice makes practice” and this makes it critical that people use their fair use rights.
This responsibility of creating and adhering to best practices needs to come from within the various communities – whether they are filmmakers or anything else. This was the case in the development of Best Practices for Documentary Filmmakers that was adopted by the documentary filmmaking community and agreed to by the insurance industry.
She went on to describe the roles played by various parties in developing and supporting the establishment of best practices within the documentary filmmakers' community.
Understanding this model – and how it can be applied to documentary filmmaking and elsewhere – is something everyone involved in fair use issues needs to be thinking about. The university, as described by Abelson, is an area where best practices need to be considered and established. Perhaps even more important, suggested Aufderheide, is the fact that the production of content has become a community-based process. These people are facing the same issues as faced by documentary filmmakers: constriction of creativity, free speech, etc.
How do we get a handle on changing practices for these people when it is such a diffuse problem? To help with this issue, the McCarther Foundation is funding a project to create a fair use code for media literacy practitioners. This is especially important because media literacy as an idea is something both old and new. It used to mean helping people to critique and understand the media; now it means helping people create the most compelling and creative content possible.
Media literacy teachers and practitioners are people who work within the diffuse universe of content creation and who can come together to create a coalition to define what they mean by best practices. This will allow them to do within a wider sphere what has already been done with documentary filmmakers.
To help get the conversation started in the emerging world of participatory culture, Aufderheide created a short film, Remix Culture: The Early Years.
[NOTE: Aufderheide conducted a brainstorming session to define fair-use best practices for media literacy professionals immediately following her plenary presentation.]
Question: What will it take for universities to begin looking to their mission statements, rather than to their risk management groups, when thinking about fair use?
Quinn: The people who care about the content need to get together and work together.
Aufderheide: People need to stop settling for second best when it comes to content; and they need to ask the people who care about content – the filmmakers and distributors – for ideas and advice. I stayed away from the content people when working on the Best Practices document because they had the least interest in making any changes. Don't settle for second best; and ask the people who care – which are the filmmakers and distributors.
Question: We are in the process of putting together a best practice document for film and media educators; next we'll be doing one for publications. We're focusing on these areas because they are where the content wars are functioning at the moment and it's our field of study. Any thoughts?
Aufderheide: Fair use is starting to be considered – and best practice documents are being developed – in all sorts of communities
Question: I am working on the creation of common open specs for the technology and fair-use systems, and I hope that this movement can move beyond specific disciplines to cover whole institutions. Thoughts?
Aufderheide: I have been excited to see that people are being pointed to the best practices model, but I feel that each case is different so that a single model might be difficult.
Question: We are creating a web-based magazine. Can film best practices be applied to other content types?
Aufderheide: You can't really say which actions or uses would be protected for other media types, but we need to preserve open spaces for experimentation across the board… I don't believe that copyright is broken, but that practice is broken and if people want the system to work they need to use their fair-use rights.
Fair Use and Free Speech in Documentary Film (video), Patricia Aufderheide
How Documentary Filmmakers Overcame their Fear of Quoting and Learned to Employ Fair Use: a Tale of Scholarship in Action (paper), Patricia Aufderheide
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