I have to give lots of credit to the authors of Reclaiming Fair Use: How to Put Balance Back in Copyright. I took a copyright law class in 2010, have worked on subsidiary rights as a professional and I consider myself to be pretty knowledgeable about copyright law. I am copyleft, but I have always been more interested in projects like the Creative Commons and solutions to copyright that are focused on simplifying licensing agreements and permissions rather than asserting a “right to use copyrighted material without permission or payment.” (RFU, ix)
If you asked me one short week ago, I would have described the doctrine of fair use as a defense against copyright infringement and definitely not as a right. However, the authors of Reclaiming Fair Use argue that fair use is both a defense and a right, comparing it to the right to self-defense (RFU, 176). I don’t say this terribly often, but I have changed my mind.
Fair Use IS a right.
But like all rights, including the right to self-defense, it is not an absolute right.
The concept of fair use is defined in US Code Title 17, Section 107 , providing a 4 part balancing test to determine fair use.
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”
In my past work in publishing, I was quite comfortable with determining a standard for online fair use based upon transformative use. Parodies, documentaries, search engines, excerpting to compose an original article; any sort of online display that added value to the original was fair game. This standard protects the original work’s exclusive right of display, encourages online innovation and creativity, and benefits the public by requiring that additional value be added to the content.
For instance, this YouTube video that contains copyrighted material from NBC and Disney
could use the fair use defense has the right to fair use because it is clearly a (hilarious) parody.
Yet, now that I am working as a public historian, this standard feels more cumbersome. Am I required to have Imperial Walkers spliced into my videos if I want to post historical content that is copyrighted? How can I make records of the past transformative?
As this article from The Atlantic notes, it is not enough to merely digitize records and hope that the new format is transformative. The teenagers that run @historypics were not adding value to historical photographs, they were merely taking others work and violating their rights without any attribution.
As historians, we are trained to cite, document, credit, and share our sources. I am not sure how fair use will evolve in the coming years, but I do know that permissions and attribution will continue to be very important to me and to my profession.