Copyright users have problems accessing copyrighted material to make new work, from takedowns on YouTube to scary messages from MPAA to harsh licensing terms from major league sports.
But using rhetoric of war, conflict, and opposition is not helping us solve them.
Rather it’s having a counterproductive effect—scaring people out of using the rights they have and claiming more space for flexibility and freedom of expression
The other side of the “copyright wars” is the copyleft. In some ways they couldn’t be more different—they have no money, most importantly.
The copyrightists and copyleftists share some rhetorical and ideological tropes. These work well to achieve the goals of the copyrightists. And if the copyleft wants to stay powerless and ineffective, I suppose it works for them too. But it sure doesn’t work for the rest of us.
What we need is a civil rights agenda for copyright users around rebalancing the copyright act. We need for the rights that corporations have used for decades to be extended to the rest of us. The tools are already within the law. We need to assert our right to use them.
How do we get out? By going back to the purpose of copyright.
The purpose is not to protect owners. Copyright is not a property right. It is a basket of approaches to encouraging the creation of culture.
This requires a balanced approach.
The best tool we have is fair use--the legal, unauthorized use of copyrighted material, under some circumstances. It is flexible, broad and adaptable.
But both copyrightists and copyleftists disparage it.
Copyleftists echo the copyrightists perfectly.
Meanwhile, judges love it and encourage people to use it. They ask three questions.
The major spokesperson for the fair use movement is Peter Jaszi, who argues for making the balancing features of the law accessible to everyone.
That’s where it becomes important to have some standards to refer to, to tell you what is typical, normal, necessary and appropriate in your kind of cultural practice.
At American University, Peter Jaszi in the law school and I in the School of Communication have worked with a variety of communities, who have defined fair use and expanded their ability to use it.
Documentary filmmakers designed a code of best practices in fair use, through their five national organizations. We were funded by the Rockefeller and MacArthur Foundations.
The results were dramatic, and immediate.
Teachers came to us because they had a common problem whenever they taught using popular culture, and especially when they taught “media literacy”—criticism and analysis of popular culture.Once again we conducted research, and discovered teachers were overcomplying, avoiding teaching with this material when they used it, closed the classroom door and swore their students to secrecy. Used bad or inadequate material, e.g. making up their own ads to simulate common advertising. They too worked through their organizations to determine norms of interpretation, and again a legal advisory board looked over their work. The Ford Foundation paid for this.
Their situation changed dramatically as well.
Other groups are now developing and have developed codes of best practices in fair use. In each case, it changes practice. Fair use has become important in business, as codes of best practices become guides to more rationale business practices.
We’ve just begun working with librarians—certainly the largest, most pervasive constituency we’ve worked with.—thanks to the Mellon Foundation.
Fair use is becoming a popular issue among copyright critics. Think tanks such as Public Knowledge, projects such as Henry Jenkins’ New Media Literacies, and Steve Anderson’s Critical Commons site at USC all depend openly on fair use. The Organization for Transformative Works celebrates it. Electronic Frontier Foundation helps people do counter-takedowns with fair use justifications, and works with ISPs to develop fair use friendly standards.
There are growing constituencies for fair use in business. Businesses that depend upon fair use were among the fastest growing in the US economy in the early 2000s. They now account for at least 16 percent of the US real economic growth annually. (Content industries say that 23 percent of the US economy depends on protecting their ownership rights, but they’re not growing as fast as Google.)
Fair use rhetoric eschews the copyright wars rhetoric. It rejects the premise that copyright is a property right; it argues that balance is key; that the public interest is served by these balancing features; and that people need to use the balancing features. This is a civil rights agenda, not a war.
There is real movement both in economic behavior and also in policy influence and action. Constituencies for balance in copyright are being created.
I call on you to become an activist for your own civil rights to information use. Please—exercise your muscles! Thank you.
BEYOND THE COPYRIGHT WARS:A Civil Rights Agenda for Copyright Users<br />Pat Aufderheide <br />Center for Social Media <br />American University <br />