A Decade of Fair Use Education Pays Off

A September conference at the Program on Information Justice and Intellectual Property at American University’s Washington College of Law (WCL) featured a look back at the remarkable change over the last decade in fair use practices, as a result of a strategy led by Peter Jaszi, in which the Center has been proud to play a part.   

For a decade, and with help from funders such as the John D. and Catherine T. MacArthur Foundation, Rockefeller Foundation, McCormick Foundation, and Mellon Foundation, among others, Peter Jaszi and I have been working with creators of all kinds—filmmakers, journalists, librarians, media literacy teachers, open courseware designers, visual arts professionals and more—to create codes of best practices in fair use tailored to the most common situations where fair use questions arise in each community. 

 The change has been remarkable. In some cases—for most documentary filmmakers, for example—industry-wide policy has been reversed. Sometimes change has occurred almost immediately. In other cases, leading institutions have instituted change that then reverberates.

 The notion that a non-legal advice document such as a code of best practices could have such a big effect on practices with legal risk was unlikely when the project began, and to some still seems unlikely. But conference speakers demonstrated its power. 

 How it all began.

Jaszi recalled the inspiration he found by reading an influential law review article by Michael Madison. Madison was on hand to explain a key relevant insight—that courts do take into consideration practices of a field in interpreting a particular case of fair use. This makes it important to consider cultural context in interpreting legal decisions, especially one about creating culture (as fair use is always involved in doing). Madison’s insights explained why it would be important to articulate best practices and why they would have influence in judicial decision-making.

 “It’s exciting to see my research built into a modern-age law reform, giving agency to people whose rights and stakes are on the front lines,” said Madison. “They are taking control of fair use as a collective, on a robust basis.”

 What a difference it makes. 

 From RetroReport, which produces segments for the New York Times providing context to today’s news, Kyra Darnton explained that the way they do their work would be impossible without the Documentary Filmmakers’ Statement of Best Practices in Fair Use. “It makes our films better, it sharpens our argument. Bringing context and perspective to the news is intertwined with the fair use doctrine.”

 "We’ve made 61 films, there’s not one where we had a strong argument to make that we couldn’t make because of copyright problems, thanks to fair use.”

 UCLA’s archivist Heather Briston has integrated librarians’ best practices into digital collections policy. “We want to encourage inquiry, we want our students and professors to have access, to browse, to get an idea,” she said. For that, getting material digitized and available is a sine qua non. “We’ve had digital projects in eight or nine collections in the last 18 months. And tool like the Association of Research Libraries’ best practices is crucial. Our copy is underlined everywhere.”  One example: The Los Angeles Aqueduct Digital Platform, which stimulates discussion of California’s most precious resource with rich archival resources available to all. 

 Scaleable and spreadable.

 She pointed out that the Code makes issues of fair use scaleable, by allowing people to learn the reas