Putting Fair Use on Display: Ending the Permissions Culture in the Museum Community

Digital technologies present museums with tremendous opportunities to increase public access to the arts. But the longstanding “permissions culture” entrenched in the museum community—in which licenses are obtained for the use of copyrighted materials regardless of whether such uses are “fair,” such that licenses are not legally required—likely will make the cost of many potential digital projects prohibitively expensive. Ending the permissions culture is therefore critically important to museums as they seek to connect with diverse audiences in the Digital Age. In this issue brief, I argue that such a development will require clear and context-specific information about fair use that enables museum professionals to better understand the appropriate boundaries of fair use, and that a community-based code of best practices—like the College Art Association’s recently released Code of Best Practices for Fair Use in the Visual Arts—is likely the best means to achieve this

Content, Purpose, or Both?

Most debates about the proper meaning of “transformativeness” in fair use are really about a larger shift towards more robust fair use. Part I of this short Article explores the copyright-restrictionist turn towards defending fair use, whereas in the past critics of copyright’s broad scope were more likely to argue that fair use was too fragile to protect free speech and creativity in the digital age. Part II looks at some of the major cases supporting that rhetorical and political shift. Although it hasn’t broken decisively with the past, current case law makes more salient the freedoms many types of uses and users have to proceed without copyright owners’ authorization. Part III discusses some of the strongest critics of liberal fair use interpretations, especially their arguments that transformative “purpose” is an illegitimate category. Part IV looks towards the future, suggesting that broad understandings of transformativeness are here to stay

Clipping Our Own Wings: Copyright and Creativity in Communication Research

Presents survey findings on how knowledge of copyright issues affects communication scholars' research decisions, access, and publication. Recommends developing best practices standards for the U.S. doctrine of fair use to expand creative options

Copyright and mass social authorship: a case study of the making of the Oxford English dictionary

Social authorship ventures involving masses of volunteers like Wikipedia are thought to be a phenomenon enabled by digital technology, presenting new challenges for copyright law. By contrast, the case study explored in this article uncovers copyright issues considered in relation to a nineteenth century social authorship precedent: the seventy-year process of compiling the first edition of the Oxford English Dictionary instigated by the not-for-profit Philological Society in 1858 which involved thousands of casually organised volunteer readers and sub-editors. Drawing on extensive original archival research, the article uses the case study as a means of critically reflecting on the claims of existing interdisciplinary literature concerning copyright and ‘authorship’: unlike the claims of the so-called Romanticism thesis, the article argues that copyright law supported an understanding of NED authorship as collaborative and democratic. Further, in uncovering the practical solutions which lawyers considered in debating issues relating to title and rights clearance, the article uses the nineteenth century experience as a vantage point for considering how these issues are approached today: despite the very different context, the copyright problems and solutions debated in the nineteenth century demonstrate remarkable continuity with those considered in relation to social authorship projects today

Judges as Bad Reviewers: Fair Use and Epistemological Humility

The future of fair use depends on whether judges act like bad reviewers, or whether they behave differently in interpreting challenged works than they do in almost every other aspect of judging. Ordinarily, judges are asked to produce definitive answers about the meanings of texts. But when it comes to literary judgments, the bad reviewer is the one who insists that a work has only one meaning, and announces the bottom line as if it were an absolute. A good reviewer explains the sources of her judgment, making room for other interpretations. This is also what is necessary to a good fair use analysis. Unfortunately, copyright fair use cases rarely acknowledge multiplicity of meaning. Through discussion of fan-made music videos, this short commentary shows how transformative uses routinely invite multiple interpretations, just as ‘‘original’’ works do. As a result, a fair use analysis that insists on reducing works to single meanings will predictably fail in the aim of protecting transformative works that add new meanings or messages. The proper approach is epistemological humility: when reasonable audience members could discern commentary on the original work, a court should find transformation, even when other reasonable audience members could disagree

Fair Use Challenges in Academic and Research Libraries

Summarizes findings from a survey of librarians on the application of fair use in copyright practice to fulfill libraries' missions of teaching and learning support, scholarship support preservation, exhibition, and public outreach

Clinical Legal Education and the Public Interest in Intellectual Property Law

Clinical legal education provides a powerful methodology for students to learn about the relationships among intellectual property law theories, policies and practices; to encounter the experiences of persons who seek protection or who feel the legal regimes of intellectual property impinging on their ability to engage in educational, creative, innovative and culturally significant work; and to develop as lawyers. We describe in this article our motivations for forming an intellectual property law clinic at the American University Washington College of Law, the goals that we seek to achieve, and the tripartite pedagogical structure that we adopted - (1) a seminar built around a year-long simulation that addresses multiple lawyering skills and legal practice settings, (2) a wide variety of live-client student representations performed under close faculty supervision, and (3) weekly case rounds discussions focusing on public interest issues experienced directly by the students in their representations. We provide an example of a particular student representation that illustrates some of the benefits of our clinical model for teaching students about the public interest and intellectual property law doctrines within the framework of teaching about lawyering. We conclude with our reflections on student experiences and the ability of our clinical program to teach intellectual property law and lawyering in concrete factual and policy contexts, helping students better understand the interaction of theory, doctrine and practice in shaping the meaning and consequences of intellectual property regimes. Students came to understand law and lawyering and to see ways to shape their lives as lawyers, through analyzing and evaluating their responses to the interests of their clients, their actions in meeting the demands of a case, their understanding of the relationships among doctrinal areas, and the connection of their activities to the public interest

Copyright and Creativity: Authors and Photographers

The history of the occupations “author” and “photographer” provides an insightful perspective on copyright and creativity. The concept of the romantic author, associated with personal creative genius, gained prominence in the eighteenth century. However, in the U.S. in 1900 only about three thousand persons professed their occupation to be “author.” Self-professed “photographers” were then about ten times as numerous as authors. Being a photographer was associated with manufacturing and depended only on mastering technical skills and making a living. Being an author, in contrast, was an elite status associated with science and literature. Across the twentieth century, the number of writers and authors grew much more rapidly than the number of photographers. The relative success of writers and authors in creating jobs seems to have depended not on differences in copyright or possibilities for self- production, but on greater occupational innovation. Creativity in organizing daily work is an important form of creativity.occupations, authors, photographers, copyright law, economic history

Intellectual property: the global spread of a legal concept

Although intellectual property law is a distinctively Western, modern, and relatively young body of law, it has spread all over the world, now encompassing all but a very few outsiders such as Afghanistan, Somalia, and Vanuatu. This article presents three legal transfers that contributed to this development: first, from real property in land and movables to intellectual property in the late 18th century in Western Europe; second, from Western Europe, in particular from the United Kingdom and France to the rest of the world during the colonial era in the 19th and early 20th century; third, from the protection of new knowledge to the protection of traditional knowledge, held by indigenous communities in developing countries, on 5 August 1963. This story illuminates how legal transfers in a broad sense – including, but not limited to legal transplants - drive the evolution of law