Truth to tell, I have a love/hate relationship with fair use. On the one hand I know how absolutely essential the principle of fair use is, how fair use undergirds our access to ideas, information, the arts, the products of creative minds that make our world a better place. On the other hand, the legalistic intricacies of fair use, and the complexity of applying the principle in the digital age, are far beyond my capacity to comprehend.
Still, each year I pause, if briefly, to acknowledge Fair Use Week which I note year has morphed into Fair Use Fair Dealing Week, a nod to our neighbors to the North with whom the free flow of information is a priority. Happy Fair Use Fair Dealing Week, February 22-27.
Celebration of the week – and the doctrine — got off to a late-but-good start when I came across this highly effective infographic, aimed at but certainly not limited to college students. http://www.scribd.com/doc/300046297/Fair-Use-in-a-Day-in-the-Life-of-a-College-Student-Infographic-February 2016.
The chart helped me realize in concrete terms just how dependent we are on the doctrine of fair use as what one writer calls the “safety valve” of US copyright law.
What caught my attention next was a fascinating new spin on the doctrine of fair use, the focus on fair use in the arts. As a resident of Northeast Minneapolis I tend to notice major developments that relate access to the arts; this study opened my eyes to a major digital age issue facing artists and their public.
The College Art Association has just released a Code of Best Practices in Fair Use for the Visual Arts. (http://www.collegeart.org/pdf/fair-use/best-practices-fair-use-visual-arts.pdf ) The Code is the result of a two-year process which leaders honestly reveal followed a period “beset by problems put in motion by one simple axiom: when in doubt, as permission.” Researchers concluded that reluctance to risk legal action – and the time to secure permission – have severely clogged the creative process. As a result, researchers wrote,
We are keeping ourselves from doing the work we love in the way we know it should be done, because we were not sure when legally we should get permission, when we did not have to, and what our risk really us….
It sometimes took years to get permissions for illustrations for a monograph – or even a journal article. Graduate students had taken to selecting thesis topics based on ease of permissions. Editors were frustrated by balking processes and the occasional blank space where permissions do not work out. Museum professionals had stories upon stories of exhibitions gone awry or delayed interminably for permissions. Artists were hesitating to experiment with digital art forms or make recombinant art. They sometimes told their students to create anything they liked…until they wanted to exhibit it.
Attention to best practices within the visual arts has the side benefit of expanding an holistic view of the doctrine of fair use itself. Fair Use deliberation is influenced to considerable extent by legal and political pressure that can afford to move with speed and force to set the rules in a technological environment undergoing rapid and legal precedent-setting change.
The good news is that there are accessible resources and authorities: With apologies for late notice, there is a high-powered videoconference tomorrow, February 23, sponsored by the Association of Research Libraries; the conference features library, publisher and author perspectives on the doctrine. http://webcast.amps.ms.mit.edu/spr2016/Lib/1608/4/index.html (My guess is that it will be posted for later viewing.) Or visit http://www.fairuseweek.org for additional background and resources. The Library Journal InfoDocket posts up-to-the-minute developments, events and news. (http://www.infodocket.com/2016/02/22/fair-use-week-2016-is-now-underway/)