Fair Use Has a Posse
Yesterday, the British Library jumped head-first into the digital copyright wars by issuing a manifesto demanding greater protection of Britain’s “digital heritage.” What’s going on exactly, and what does this have to do with American education?
Not unlike our own Library of Congress, the British Library is the United Kingdom’s national library. And just like other national libraries around the world, they’re concerned about serving the public interest by giving all people equitable access to knowledge. With the release of this manifesto (pdf download), they’re firing a shot across the bow of Britain’s legal system, which they argue fails to address the modern realities of digital content. These failures, they argue, make it more difficult for educators, students and researches to access relevant knowledge in their work or studies.
For one thing, they claim, British law doesn’t treat digital content in the same way they treat other forms of media, like books. Books and other paper media are granted legal certain privileges as far as libraries are concerned, allowing libraries to archive, preserve and disseminate copies of them to the public. This privilege, however, doesn’t extend to digital content, allowing copyright owners to prevent libraries from accessing their work. By not recognizing digital content as worthy of these privileges, they suggest, “knowledge will potentially become simply a commodity to be bought and sold by those that can afford it.”
The manifesto goes on to attack what they describe as the “real, technical threat” of Digital Rights Management, or DRM. For those of you who aren’t familiar with this concept, try one of these experiments:
- Download a song from Apple’s iTunes and try to upload it to any MP3 player besides an iPod.
- Stick a DVD in your computer and try to make a copy of it.
In either case, it won’t work very easily. That’s because they’re both protected with computer code that prevents people from copying them. That’s called Digital Rights Management. The companies that produce the content, whether it’s an mp3, a DVD, software, etc, use DRM to lock them up and prevent people from reproducing them. The British Library now joins a chorus of other copyright activists arguing that DRM often surpasses the restrictions that exist within copyright law, making it harder for people to use content in ways that should otherwise be legal.
They state that DRM undermines the concept of “fair dealing,” which is similar to the US concept of “fair use.” Fair use has been a part of US common law since the founding of the country, but it wasn’t until 1976 that Congress enshrined it into law by stating
[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
The British Library manifesto argues that these types of fair uses - educational uses, scholarly uses, etc - are undermined by DRM, since DRM software can’t be unlocked by the consumer, even for just reasons. So if a teacher or a librarian wanted to make copies of DRM-protected digital works, they couldn’t, even if it qualified as fair use. Complicating matters further is the fact that people who manage to crack DRM software, even if they’re trying to exert their right to fair use, are actually breaking the law. So they’re caught between a rock and hard place: you can’t copy digital content, and if you do, you’re a scofflaw.
Along with DRM, the manifesto laments the use of overly restrictive licensing contracts. As an experiment, they randomly selected 30 different online database they subscribe to - scholarly databases, news database and the like. Of these 30 databases, 28 of them had contracts “found to be more restrictive than rights that currently exist within copyright law.” This example, I can imagine, will be of particular concern to educators and students who rely on these databases for research.
These dilemmas have been on the lips of many copyright activists for years. Much of the Free Software movement owes itself to programmers resisting the rules and restrictions of commercial software, causing them to create new software that can be used freely by anyone, any time, for any purpose.
I’ve been thinking a lot about fair use ever since seeing Jamie Boyle of Duke University speak at a public broadcasting conference last week. Along with being perhaps the most entertaining speaker in the world when it comes to digital copyright, he’s the co-author of the amazing Copyright 101 comic book Bound By Law?, which I described here last month. In his speech, Jamie said that copyright used to be “a landmine that took the heavy tanks of industry to set it off.” In other words, it was used to protect artists and producers from giant, monolithic companies that might exploit their work; individuals who pushed the limits of fair use weren’t seen as legitimate targets. Now, he noted, copyright has become “an anti-personnel mine” - every one of us can accidentally sent it off simply by trying to make fair use of digital content.
Jamie went on to say how current copyright culture is actually eroding fair use. One of the ways people have argued that they were using a piece of content according to the rules of fair use was by demonstrating there wasn’t a commercial market for it. As any documentary producer will tell you, though, it’s now common practice to approach copyright owners and ask them to license small snippets of content, like incidental music caught in the background of a movie scene. Jamie and others argue that these incidental uses are indeed fair use, but because it’s become practice for people to pay money to license these things rather than claim fair use, they’re actually undermining fair use by creating the very market that lawyers can point to when arguing someone can’t claim fair use for their client’s content. So it’s a vicious cycle - if you don’t use it, you lose it.
Educators all too often find themselves in a bind, because of this omnipresent culture of aggressive copyright. Whether it’s fretting over the number of paper copies they can xerox of a given book chapter, or trying to download a particularly useful multimedia animation so it can be installed on individual computers, educators are forced to make choices over what knowledge they share with their students and how. The British Library now joins the chorus of people arguing that these restrictions go beyond reasonable copyright restricts and potentially hamper learning.
Even though US law specifically mentions making copies of content as an example of fair use, there’s pressure to be overly cautious, to not claim fair use, and to spend lots of time and money licensing content that would otherwise fall under fair use in many circumstances. Internet activism groups like the Electronic Frontier Foundation have long argued the need for people to exert fair use more aggressively as a way of reclaiming it, just like Jamie said in his speech last week. They even came up with one of the coolest slogans ever - Fair Use Has A Posse. It may sound strange at first, but it truly does take a posse - a community of people - to protect and re-exert fair use. Copyright activists have joined the posse, as have many librarians - including the Redcoats as of yesterday. The question is, are US teachers ready to saddle up as well?
What are some of your copyright war stories? Have you ever been prevented from teaching something because a piece of content was overly restricted due to DRM or licensing rules? Is this affecting the way you teach? I’d love to hear some war stories from the field. -andy
Filed under : Policy