Fair Use Week | Authors Alliance

"For a week about fair use, let me make fair use about authorship, and the shared goals of copyright, and in a very specific way. First, some background: I first wrote at length about the purposes and law of fair use in a long paper published in 2004, A Pattern-Oriented Approach to Fair Use. I surveyed fair use cases and offered four related conclusions: To begin with, fair use decisions were (and are) more predictable and consistent than is commonly thought, and fair use decisions can be clustered around the idea that fair use should align with a 'pattern' of creative practice. More broadly, as I wrote in a later paper (Some Optimism About Fair Use and Copyright Law): 'creativity and knowledge production is an emergent property of patterned social behavior; … those patterns exist concurrently with but distinct from market-based production of knowledge goods by individuals and firms; [and] those patterned behaviors can be identified as institutions, and exempting those institutions from the discipline of copyright’s scheme of exclusive rights is likely to increase the social welfare produced by the copyright system as a whole and is likely to not diminish the social welfare produced by the market side of copyright'  In short, what’s good for fair use is good for authors, and vice versa. More important, however, that paper was timed – coincidentally – to align with the emerging 'Best Practices in Fair Use' project at the Center for Social Media (now Center for Media and Social Impact) at American University, and the efforts of that project’s leaders, Pat Aufderheide and Peter Jaszi. The key insight motivating the Best Practices project was a close cousin of my pattern-oriented argument: That the power of fair use lies not merely with individuals but, importantly, with communities – creative communities. Authorial communities ..."