- Reclaiming Fair Use: How to Put Balance Back in Copyright
The basic message of this book is simple: use it or lose it. As the authors say in their introduction, ‘Fair use becomes real only when people actually use it; like a muscle, it can shrink with disuse’ (xi). Or, as they elaborate their aims more fully a little later, ‘The assertion of fair use is part of a larger project of reclaiming the full meaning of copyright policy—not merely protection for owners, but the nurturing of creativity, learning, expression. Asserting and defending fair-use rights are a crucial part of constructing saner copyright policy’ (15).
Like many on the so-called copyleft, they are concerned about the strengthening of copyright protection that has happened, in their view, since the 1960s and the constraints that this new ‘long and strong’ copyright imposes on innovation and creativity among artists (in the broadest sense), scholars, and teachers. And they are highly critical of tactics used by content-industry associations and spokespeople to scare users into thinking that almost everything reproduced from copyrighted sources requires permission. Not so, they forcefully argue throughout this book, once one understands and deploys the arsenal of defensive weapons that fair use provides.
Unlike many critiques written from this perspective, however, such as William Patry’s Moral Panics and the Copyright Wars (2009),1 this one does not flinch from criticizing the copyleft also. Indeed, it is refreshing to see the advocates of ‘free culture’ taken to task for indulging too much in the rhetoric of ‘dissidence, protest, and secession’ (67) and the [End Page 248] ‘politics of the victim’ (68) at the expense of promoting practical solutions to the problems they identified, especially the more vigorous deployment of fair use already available in existing copyright law. Copyleft activists and industry lobbyists mirror each other in their language and assumptions, both to the detriment of fair use:
It is a sad irony that so many of the tropes found in industry ‘educational’ materials can also be found among free-culture enthusiasts. Both industry and copyleftists use the language of piracy. In this way, copyleftitsts capitulate to content industry assumptions about the hegemony of copyright ownership in the current system, rather than emphasizing the importance of balanced rights. Both sides portray their positions as morally superior. . . . This unhelpfully sets up a black-hat white-hat paradigm, rather than allowing people to see that balance within copyright is key, that copyright is about promoting culture and not about property rights as an end in themselves, and that context is critical.(69)
Thus evenhandedly blaming both sides for the polarization of the copyright debate as we moved into the new millennium, the authors devote the rest of their book to mapping out the development of ‘best practices’ as a new strategy for trying to reset the balance in copyright even in the absence of significant progress in further revising the law itself (such as Congress’s appalling failure to pass legislation to deal with ‘orphan works’ and update provisions for library exemptions in section 108 of the United States Copyright Act despite carefully negotiated recommendations from content owners and user groups). In chapters 2–4, the authors chart how copyright became ‘long and strong’ from changes that came about in developments leading to the Copyright Act of 1976 up through the late 1990s, when both the Digital Millennium Copyright Act (DMCA) and the Sonny Bono Copyright Term Extension Act marginalized fair use at the same time that they highlighted the ever greater necessity for it. Aufderheide and Jaszi then tell the interesting story (beginning in chapter 5) of how fair use became resurgent again—a story in which they played major roles, Aufderheide in her capacity as a communications scholar and director of the Center...