Author Archives: Krista Cox

Senate Foreign Relations Committee Holds Hearing on the Marrakesh Treaty for Persons With Print Disabilities

On March 15, 2018, the Marrakesh Treaty Implementation Act (S. 2559) was introduced in the US Senate by Judiciary Committee Chair Grassley (R-IA), Ranking Member Feinstein (D-CA), Foreign Relations Committee Chair Corker (R-TN), Ranking Member Menendez (D-NJ), and Senators Hatch (R-UT), Harris (D-CA), and Leahy (D-VT), to ratify and implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (ARL’s press release on the introduction of the implementing legislation is available here).  Today, April 18, 2018, the Senate Foreign Relations Committee will hold a hearing on the Marrakesh Treaty.  Witnesses include Manisha Singh (Department of State), Allan Adler (Association of American Publishers), Scott LaBarre (National Federation for the Blind) and Jonathan Band (Library Copyright Alliance).

The Marrakesh Treaty, concluded in June 2013 and signed by the United States in October 2013, provides minimum standards for limitations and exceptions to copyright law to create and distribute accessible formats for people with print disabilities and allows for the cross-border exchange of these formats. The treaty is designed to address the “book famine,” a problem where less than 5% of all published works are created in an accessible format in the United States, a figure that drops considerably in some developing countries. The treaty is in force, with 35 contracting parties, currently: Argentina, Australia, Botswana, Brazil, Burkina Faso, Canada, Chile, Costa Rica, Democratic People’s Republic of Korea, Ecuador, El Salvador, Guatemala, Honduras, India, Israel, Kenya, Kyrgyzstan, Liberia, Malawi, Mali, Mexico, Mongolia, Nigeria, Panama, Paraguay, Peru, Republic of Korea, Republic of Moldova, Russian Federation, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Tunisia, United Arab Emirates, and Uruguay.

The implementing legislation makes some technical changes to Section 121 of the Copyright Act, including expanding the scope of works that may be reproduced and distributed to dramatic works or musical compositions fixed in text or notation. Section 121 would apply for domestic activity regarding the creation and distribution of accessible format works. The bill also creates a new Section 121A to address activities involving cross-border exchange.

Ratification and implementation of the Marrakesh Treaty is critical to improving access to information and culture for those who are blind, visually impaired or otherwise print disabled. The treaty will not only assist those living in countries with extremely limited collections of accessible formats, but will provide significant benefits to those in the United States. The United States will be able to enhance its own collections of accessible format works, through exchange with countries with a common language, such as Australia and Canada, but will also benefit from the ability to import works in a foreign language, such as the nearly 50,000 accessible titles from Argentina.

ARL urges the Senate to quickly ratify the treaty, which will greatly enhance the ability of libraries and other authorized entities to serve those with print disabilities. Ratification and the implementing legislation is supported by a broad group of stakeholders, including organizations representing those who are blind, libraries and authorized entities and publishers.

For additional reading:

Fair Use/Fair Dealing Week 2018 Highlights Balance in the Copyright System

*Cross-posted from ARL News*

The fifth annual Fair Use/Fair Dealing Week took place February 26–March 2, 2018, growing to 153 participating organizations—as well as numerous individuals—celebrating the important and flexible doctrines of fair use and fair dealing worldwide. This year’s event was organized by the Association of Research Libraries (ARL) and participants included universities, libraries, library associations, and many other organizations, such as Authors Alliance, the Center for Democracy & Technology, the Electronic Frontier Foundation, the R Street Institute, and Re:Create. Sixty ARL member institutions contributed a wide range of resources this year. Fair Use/Fair Dealing Week was observed around the globe by participants in such countries as Australia, Canada, Colombia, Greece, and the United States.

Throughout the week, participants celebrated the essential limitations and exceptions to copyright that fair use and fair dealing provide, allowing the use of copyrighted materials without permission from the copyright holder under certain circumstances. While fair use and fair dealing are employed on a daily basis, Fair Use/Fair Dealing Week is a time to promote and discuss opportunities presented, share successful stories, and explain these doctrines.

Each day, new blog posts and other resources were produced and shared and institutions hosted a variety of live events, such as panel discussions, film screenings, button- and kaleidocycle-making stations and more. Daily roundups and additional resources are available on the Fair Use/Fair Dealing Week website. There were 90 news and blog posts, three infographics, three videos, a podcast, and more shared over the course of the week. Below are some highlights.

Fair Use/Fair Dealing Week 2019 will take place February 25–March 1. Plan to participate!

Resources

ARL released the infographic, “Fair Use Promotes the Creation of New Knowledge.”

The Canadian Association of Research Libraries (CARL) released a double-sided infographic—one side pertaining to fair dealing generally and one on fair dealing and education in Canada—“Fair Dealing in Canada: Myths & Facts.” Additionally, CARL launched an expanded website and social media campaign for Fair Dealing Week; the new website includes a compelling testimonials page, highlighting the importance of fair dealing from many different sources.

The International Federation of Library Associations and Institutions (IFLA) released the infographic, “Fair Use and Fair Dealing for Libraries.”

Harvard University released a new comic book, this one on the Authors Guild v. Google case.

Creative Commons Australia produced a Storify recap of its favorite posts on Fair Use/Fair Dealing Week.

Audio/Video

Re:Create released a new episode of its Copy This Podcast, “Copying is Human Nature,” which features Laura Quilter, copyright and information policy librarian at University of Massachusetts Amherst.

The Association of College & Research Libraries (ACRL) released a recording of its webinar with Carla Myers, scholarly communication coordinator at Miami University Libraries in Ohio, “Can’t You Just Say Yes? Answering Copyright Questions about Fair Use for Patrons.”

Massachusetts Institute for Technology created a printable fair use kaleidocycle with video instructions on how to create it.

University of Winnipeg released a Fair Dealing Week video.

University of Lethbridge posted a video about “Fair Dealing in the Classroom.”

News/Blog Posts

The Center for Democracy & Technology posted a clever “conversation” about fair use entirely made up of quotations from other papers, statements, court opinions and more, entitled “I Didn’t Write This Conversation about Fair Use.”

R Street Institute posted, “The Creative Side of R Street,” illustrated with over a dozen GIFs.

There were also several posts related to fair use and trade agreements, including one by attorney Jonathan Band; one by Sean Flynn, associate director for the Program on Information Justice and Intellectual Property at American University Washington College of Law; and one by Timothy Vollmer, senior manager of public policy at Creative Commons.

Here’s an interview with copyright expert Peter Jaszi, which includes a question about the current work on a Code of Best Practices in Fair Use for Software Preservation. The National Library of Medicine’s blog post covers a range of relevant fair use issues and also references the software preservation project.

Aligning with ARL’s infographic theme for 2018, there were quite a few posts about fair use and user-generated content or new knowledge, including the University of San Francisco’s post on fan fiction; University of Virginia’s event on “The State of the Remix @UVA;” a post on the Copyright at Harvard Library blog featuring mash-up videos and entitled “Fair Use and User Generated Content;” Re:Create’s Creator Profile featuring Sarah Loch, a fanfiction writer; the Organization for Transformative Works discussion of the Copy Me project with two creators interested in fan works; and this post by Jonathan Band about the musical Something Rotten.

The Authors Alliance posted several times during the week, including an updated Fair Use FAQ and an announcement of the print release of the guide to Fair Use for Nonfiction Authors. The Center for Media and Social Impact also had several blog posts throughout the week.

In Canada, University of Toronto law professor Ariel Katz shared a draft of his forthcoming book chapter, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?” Michael Geist, law professor at University of Ottawa, posted each day of the week.

Fair Use/Fair Dealing Week 2018: Day 5 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 5 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Resources:

Massachusetts Institute of Technology, Make a Fair Use Kaleidocycle

Infographics

IFLA, Fair Use and Fair Dealing for Libraries

Blog Posts

Angel Antkers & Susan Miller on Authors Alliance blog, “Fair Use and the Digital Millennium Copyright Act” cross posted on Colorado Law Samuelson-Glushko Technology Law & Policy Clinic

Australia Digital Alliance, “It’s an important Fair Use/Fair Dealing Week for Australia

Canadian Association of Research Libraries, “Fair Dealing Week 2018 Wrap-Up

Krista Cox on ARL Policy Notes, “Fair Use and Captioning for Those Who Are Hearing Impaired

Michael Geist, “Fair Dealing and the Right to Read: The Case of Blacklock’s Reporter v. Canada (Attorney General)

Anne Gilliland on Scholarly Communications Office Intersections, “Grateful for Fair Use: Combining Text and Images

IP Quail, “Fair Use/Fair Dealing

Colleen Lyon on Open Access at UT, “Fair Use Wrap Up

Carla S. Myers on Copyright at Harvard Library, “Day 5: Fair Use and Course Reserves: Fact and Fiction

Open Library Greece, “Fair Day #fairuseweek 2018: February 26-March 2

Claudia Rebaza on the Organization for Transformative Works, “OTW Guest Post: Ioana Pelebatai & Alex Lungu

Katharine Trendacosta on the Electronic Frontier Foundation Deeplinks, “Fair Use Protects So Much More Than Many Realize

Fair Use and Captioning for Those Who are Hearing Impaired

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Under the Digital Millennium Copyright Act (DMCA), proponents must file for an exemption every three years to allow for the circumvention of technological protection measures (TPMs) to do things that are otherwise completely lawful under copyright. For example, groups representing those who are visually impaired must ask for the right to circumvent TPMs in order to enable the text-to-speech function on e-readers, even though they do not have to ask for permission to create accessible format copy works for hard copy materials. Even if the use is clearly a fair use, because of ambiguity in the text of the DMCA, individuals or groups must request exemptions for non-infringing uses.

ARL, as part of the Library Copyright Alliance (LCA), is consistently involved in the triennial rulemaking process. Among other petitions, LCA joined in a request to allow for circumvention to create accessible formats of motion pictures to those with disabilities, included through captions and audio descriptions.

Recently, rightsholders submitted opposition to exemption requests and the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and the Association of American Publishers (AAP) oppose the exemption for captioning.

The MPAA argues against captioning qualifying as a fair use. In doing so, the MPAA relies on the Register of Copyright’s conclusion in the 2012 rulemaking process that, “neither Sony-Betamax nor the Copyright Act’s legislative history suggests a rule that all reproduction, adaptation and distribution for the purpose of accessibility is fair use.” The MPAA also criticizes the citation of Authors Guild v. HathiTrust as authority favoring a fair use determination.

The MPAA claims that HathiTrust is not applicable because HathiTrust was making text accessible for people that have print disabilities rather than hearing disabilities:

In HathiTrust, defendants were, among other things, making “text-to-speech” versions of literary works so that they would be accessible to the print disabled. Altering motion pictures is a significantly different undertaking, the result of which is likely a derivative work that involves a creative interpretation of the underlying work. Thus, the proponent’s reliance on HathiTrust is misplaced.

While it is true that the facts in HathiTrust involved accessible formats for those with print disabilities rather than those with hearing impairments, the decision in HathiTrust is still highly relevant. Ultimately, the purpose in creating an accessible format work for someone who is visually impaired and an accessible format work for someone who is hearing impaired is the same: to allow someone with a disability to have access to information and culture. Without accessible formats, those with hearing impairments—just as those with visual impairments—would lack access. Indeed, the court in HathiTrust cites the Supreme Court case, Sony Corp. v. Universal City Studios for the proposition that creating an accessible format work for the convenience of a person with a visual disability does not require anything more than the purpose of entertaining or informing to render the use fair.

Creation of captions for those with hearing impairments is clearly analogous to the creation of a Braille or audio format for someone with a visual impairment. It’s unfortunate that rightholders would argue against accessibility for the hearing impaired as a fair use. Without available captions, those who are deaf or hearing impaired do not have equal access to information.

Fair Use/Fair Dealing Week 2018: Day 4 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 4 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Videos

ACRL, Webcast Archive of ACRL Presents: “Can’t you just say Yes?” Answering Copyright Questions About Fair Use for Patrons

University of Lethbridge Library, “Fair Dealing in the Classroom

Blog Posts

Authors Alliance, “Revisiting Georgia State: Fair Use and Academic Incentives

Jonathan Band on ARL Policy Notes, “Can’t Get Away From Fair Use

Gabrielle Barr, Christie Moffatt and Rebecca Goodwin on NLM Musings From the Mezzanine, “NLM Celebrates Fair Use Week

Lindsay Boyd on Canadian Alliance of Student Associations, “Fair Dealing in Education: A Firm Foundation Supporting Canadian Educational Content

Brandon Butler on The Taper, “How Is an App Like a Player Piano? And Does That Help the Fair Use Case for Software Preservation?

Krista L. Cox on Above the Law, “Celebrating Fair Use: Interview with Peter Jaszi” cross posted, in part, to ARL Policy Notes

Creative Commons Australia, “Storify: 2018 Fair Use Week Recap: useful for “aus” to think about

Sean Flynn on InfoJustice, “Comments to the Mexican Senate on Copyright Provisions in the NAFTA Renegotiation

Michael Geist, “Fair Dealing Support for News Reporting and Public Debate: The Case of Warman and National Post v. Fournier

Kevin Gunn on Catholic University of America University Libraries News and Events, “Fair Use Week 2018

Michael Lemley on Organization for Transformative Works, “Fanworks, Fair Use and Fair Dealing

Amy Manns on DeSales University News, “On Display at Trexler Library: Fair Use Week

Re:Create, “Creator Profile: Sarah Loch, Fanfiction Writer

University of Manitoba Health Sciences Libraries News, “Fair Dealing Questions? Ask the Copyright Office!

Micah Zeller on Washington University in St. Louis Scholarly Communication, “Fair Use and WashU: Part 2

Celebrating Fair Use Week: An Interview With Peter Jaszi

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

There are several leaders and pioneers in the field of copyright fair use and Peter Jaszi was kind enough to agree to be interviewed for Fair Use Week.  Peter Jaszi is a professor emeritus at the American University Washington College of Law and an expert in copyright law and fair use. His distinguished career has included numerous projects designed to promote the understanding of fair use in various communities (readers of this blog will likely be most familiar with the ARL Code of Best Practices in Fair Use for Academic and Research Libraries). He is also the co-author of the book, Reclaiming Fair Use: How to Put Balance Back In Copyright, a new edition of which will be published later this year by the University of Chicago Press.

The full interview is rather long, so I wanted to pull out just a few excerpts.  If you want to read the interview in its entirety, in which we talk about everything from every day fair uses, misconceptions about the doctrine, best practices, and career advice, you can visit this post on Above the Law.

Peter Jaszi responding to criticisms about the uncertainty around fair use:

KC: I think there are some other common misconceptions about fair use. Let’s walk through a couple of them. How do you respond to criticisms that fair use is too uncertain and difficult to use because it’s analyzed on a case-by-case basis?

PJ: Fair use isn’t any more difficult to apply or uncertain than any other legal doctrine that requires us to apply a general standard to specific facts — negligence in tort law is an example.   I’d suggest that “certainty” isn’t (and probably shouldn’t be) attainable here. What we should want and can get is some level of predictability, based on accumulated legal precedents. Given the fact that most fair uses are never challenged, the case law doesn’t accumulate at a very fast rate. Since the Supreme Court’s big turn in 1994, there have been no more than 25 or 30 important appellate cases on the subject. Many specific areas in which fair use obviously applies, to at least some extent, remain unexplored by federal judges, and are likely to stay that way. But consumers of law (whether laypeople or lawyers) can and should reason by analogy to more-or-less like cases, and make sound predictions based on the methodology employed in those cases. That’s how law — and confidence in law — develops in our “common law” system, and after 25 years or so of the new fair use jurisprudence, we’re in a position to make accurate predictions about how a court would rule — in the unlikely event that it ever came to that — in the vast majority of specific instances. So I really wish we could put this particular misconception to rest — along with Lawrence Lessig’s famous quip that fair use is just “the right to hire a lawyer,” which wasn’t strictly accurate in 2004 and certainly isn’t today. Professor Lessig has disowned this dismissive take on the power of fair use, and the rest of us should, as well.

On software preservation:

KC: Currently, you are working on a project involving best practices in fair use for software preservation. Why is this an important project?

PJ: The first 50 years of software history are of enormous interest today. For those studying software itself (from cultural and technological perspectives), the ability to analyze and interact with vintage software is essential. The same is true, of course, where investigations of software-dependent born digital materials (from text documents to CAD files) are concerned. So finding, saving and making available old programs are crucial. In this race against time and the forces of deterioration, however, copyright is a barrier, since practically every action that an archive or library might want to undertake to build a software collection or make accessible is regulated by copyright law. That’s where fair use comes in, of course, and why we are excited to be working on a Code with members of the software preservation community under the auspices of the Association of Research Libraries, and grateful that the support of the the Alfred P. Sloan Foundation makes this work possible.

His favorite fair use case:

KC: One final question. Do you have a favorite fair use case?

PJ: From a purely sentimental standpoint, I’d say Authors’ Guild v. HathiTrust, where I had the honor to be part of a great legal team working for a wonderful client, the National Federal of the Blind. But taking a slightly more academic view, I’d probably say Bill Graham Archives v. Dorling Kindersley, a landmark 2006 Second Circuit decision that gave us the fullest glimpse we had had up to that time of where fair use analysis focused on the question of transformativeness was heading.

Can’t Get Away From Fair Use

This week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*This is a guest blog post by Jonathan Band, policybandwidth*

Copyright owners accuse library advocates of having fair use on the brain, but the truth is that we just can’t get away from fair use. Over Presidents’ Day Weekend, I saw the touring production of Something Rotten with my son at the National Theatre in Washington DC. I knew nothing about the show before I went, other than that my wife thought I would love it, even though I don’t care for musicals; and that the title was an allusion to the line in Shakespeare’s Hamlet that “Something is rotten in the State of Denmark.”

Well I did love it, and not only because it was very entertaining. It also demonstrated the importance of the fair use and the public domain to new creative expression. The show concerns the efforts of two brothers in London in the 1590s struggling to compete with the popularity of William Shakespeare. Desperate to find an idea for a new play, one brother consults a soothsayer to learn what sorts of plays would be popular in the future, and what would be the subject of Shakespeare’s next hit. The soothsayer informs him that audiences will love musicals, and that Shakespeare’s next play will involve eggs, ghosts, and danish.

The brother is skeptical about the concept of musicals—why would actors suddenly start to sing? This skepticism leads to an eight-minute song that contains lyrics, melodies, and visual references to at least twenty musicals, including Avenue Q, The Fantasticks, Les Miserables, Fascinating Rhythm, West Side Story, Music Man, Seussical, South Pacific, Chicago, Evita, Rent, Jesus Christ Superstar, Sunday in the Park with George, Annie, Guys & Dolls, Sweet Charity, Hello Dolly, Cats, Sweeny Todd, and A Chorus Line. The musical the brothers ultimately produce (Omlette: the Musical) contains lines or melodies from Fiddler on the Roof, The Producers, Phantom of the Opera, Sound of Music, Mary Poppins, and Oklahoma.

Moreover, Something Rotten contains numerous quotations and characters from Hamlet, Romeo and Juliet, The Merchant of Venice, A Midsummer Night’s Dream, and Henry IV.

In short, without fair use and copyright term, Something Rotten could not have been created and produced. And it wasn’t exactly a fringe production. It had a run of 742 performances on Broadway, and it was nominated for ten Tony Awards. The actor who played Shakespeare, Christian Borle, won the Tony for best featured actor in a musical.

Existing expression is the raw material for new expression. And for new expression to be fresh and topical, authors must be able to use works more recent than Shakespeare’s.

Fair Use/Fair Dealing Week 2018: Day 3 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 3 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Blog Posts:

Authors Alliance, “Newly Updated: Fair Use FAQ

Brandon Butler on SPARC, “For Text and Data Mining, Fair Use is Powerful, but Possession Is Still 9/10 of the Law

CMSi blog, “Fair Use Question of the Month: Fair Use & YouTube

Rachel Cole on Northwestern Libraries Blog, “Fair Play: Coloring Books and Copyright

Charles Duan on R Street Institute, “The Creative Side of R Street

Michael Geist, “Why Fair Dealing Safeguards Freedom of Expression: The Case of the Vancouver Aquarium

Melanie Johnson on UK Copyright Literacy, “Flexible and Adaptable: the Future of Copyright in Australia

Ruth Lewis on Washington University in St. Louis University Libraries, “Fair Use Week Links

Colleen Lyon on Open Access at UT, “Fair Use Best Practices

Marlo MacKay on The LibVine, “Fair Dealing Week: Faculty & Fair Dealing”

Pennsylvania Library Association College and Research Division Blog, “Happy Fair Use Week

University of Manitoba Health Libraries, “CFLA/FCAB Position Statement on Fair Dealing

Fair Use/Fair Dealing Week 2018: Day 2 Roundup

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

Check out all the great posts from Day 2 of Fair Use/Fair Dealing Week 2018! Don’t see yours? Contact us to get yours added! You can view previous roundups here.

Podcasts:

ReCreate: Copy This Podcast Episode 12: Copying is Human Nature

Blog Posts:

Rachel Appel and Gabriel Galson on Scholarly Communication @ Temple, “The Importance of Fair Use and Standardized Rights Statements for Digital Cultural Heritage Institutions” cross-posted to PA Digital

Ashland University Library News, “Fair Use Week: Infographic

Jonathan Band on Disruptive Competition Project, “The Second Circuit’s Fair and Balanced Fair Use Decision in Fox News v. TVEyes

Krista Cox on Copyright at Harvard Library, “Day 2: Fair Use and User Generated Content” cross-posted to ARL Policy Notes.

Lael Ensor-Bennett on The Sheridan Libraries Blog, “Celebrate Fair Use Week . . . With Images!

Tyler Garling on The Taper, “Guest Blog: Student Remixer Tyler Garling on the Cultural Shift (Back) Toward Sharing

Michael Geist, “Why Far Dealing Benefits Creators: The Case of a Room Full of Spoons

Anne Gillaland on University of North Carolina Scholarly Communications Office Intersections, “What Does it Mean to Be Transformative

Julie Grob on UH Libraries News, “Fair Use Week: Drake’s Sampling Ruled Transformative

Ariel Katz, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?”

Amanda Levendowski on Authors Alliance, “Fair Use for Fairer AI

Stephanie Lewin-Lane on UH Libraries News, “Fair Use Week: Preservation Copies of Sound Recordings

Colleen Lyon on Open Access at UT, “Fair Use for Nonfiction Authors

Marlo MacKay on The LibVine, “Fair Dealing Week: Fair Dealing, Myths & Facts

Emily O’Connell on the CMSi blog, “Rethinking Fair Use: Rebekah Modrak and the Art of Creative Critique

Emily O’Connell on the CMSi blog, “Happy Fair Use Week! And Where to Find the Good Stuff

University of Manitoba, “Be fair in using copyrighted materials! The University recognizes Fair Dealing Week

Fair Use and User Generated Content

This week is Fair Use/Fair Dealing Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.

*Cross-posted from Copyright at Harvard Library*

In keeping with tradition, ARL has released a new infographic in celebration of Fair Use/Fair Dealing Week.  While I’m a big fan of all of our past infographics (Fair Use FundamentalsFair Use in the Day in the Life of College Student and Fair Use Myths and Facts), here’s what I love about this year’s infographic, Fair Use Promotes the Creation of New Knowledge: it reminds us that fair use isn’t just about someone using existing information, but about relying on it for new creations. Fair use facilitates all types of new knowledge, from news reporting to the creation of innovative technological products, to scholarship.

Screenshot 2018-02-25 19.08.46

In the digital environment, in particular, creating new high-quality content and disseminating it widely has become easier.  User-generated content is highly popular and often relies on fair use.  While the Fair Use Promotes the Creation of New Knowledgeinfographic contains several different examples of the type of new information and culture that fair use enables, I want to highlight some great examples of user-generated content, such as fan fiction, remix songs and mashup videos.

One of my favorite examples is this video by Movie Remixer on Youtube which mashes up 66 movie dance scenes from 60 different movies with Justin Timberlake’s 2016 song, “Can’t Stop the Feeling.”  The clips are from a very diverse set of movies, ranging from old musicals like Singin’ in the Rain and the King and I, to classics like The Red Shoes and Babes in Arms, to more recent Academy Award Best Picture Winners like Slumdog Millionaire and Silver Linings Playbook, to 1990s comedies like Mrs. Doubtfire and The Mask.  The mashup is highly creative and what I found to be particularly impressive was that it uses so many movies that have nothing to do with dancing and that the user/creator didn’t speed or slow down any of the clips to fit the rhythm of the song.

Here’s another excellent mashup, entitled “Mean Disney Girls,” which uses dialogue from the 2004 movie Mean Girls and merges it with clips featuring Disney princesses from CinderellaSleeping BeautyThe Little Mermaid and others.  In an example of mashups that go viral, this video has more than 13 million views on YouTube.

User generated content is so popular on YouTube that back in 2015, a Google blog post noted that, “More than 400 hours of video are uploaded to YouTube every minute,” including videos relying on fair use.  Because content on the web is often the subject of DMCA takedowns, even if the work is fair use, that same blog post announced:

YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary.  We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns.  With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.

While the Ninth Circuit has found that copyright holders must consider fair use in issuing takedown notices in Lenz v. Universal Music Corp., also known as the “dancing baby” case, with automated takedown notices being issued by corporate rightholders, this many not always be the case.

This year, during Fair Use/Fair Dealing Week, I’m celebrating all of the great new works we benefit from thanks to fair use.