Tomorrow, January 13, is the second annual World’s Fair Use Day. Sponsored primarily by Public Knowledge, the free event, held in Washington D.C., features keynote speakers and panels of creators, innovators and policy makers presenting on the topic of fair use. The goal of the event is to educate the public on how fair use encourages creative use of copyrighted materials and contributes to our culture. Ironically, this celebration of creativity comes a day after the settlement and dismissal of the Shepard Fairey/A.P. copyright infringement action. And while the folks in Washington D.C. congregate to discuss and share the wonders of fair use, I remain in a state of wonder about what the future of fair use is with copyright infringement litigation pending against universities in Georgia and California and groups like Righthaven expanding their attack against those exercising fair use rights. So it surprised me when an article expressing “optimism” about fair use crossed my desk this week.
In the most recent issue of the Journal of the Copyright Society of the USA (57 J. Copyright Soc’y USA 351 (2010)), University of Pittsburgh law professor Michael Madison explains why he sees hope for fair use through the development and implementation of codes of best practices. Professor Madison, as I did in a recent post, recognizes that such codes are a “second best” solution to actual law reform; however, a collective, or as Madison calls an “institutional,” response is more apt to stabilize and strengthen the meaning and application of fair use than ttesting it by individual or case-by-case bases. Madison compares the state of fair use law to that of free speech, drawing convincing analogies between the two. He explains that the right of free speech was compromised by treatment as an individual liberty but the coinage by Justice Oliver Wendell Holmes Jr. of the “marketplace of ideas” within the doctrine of free expression shifted thinking to an institutional framework and put the right of individuals on more solid ground. Madison believes the same outcome will work for fair use.
Copyright law, he states, treats everyone as an author. However, this individual right stands beside powerful institutions, such as publishers and distributors. In order to “level the playing field,” an institutional response should be adopted. And a code of best practices, he argues, is an appropriate institutional response. But this does not mean the right of individual creators is disregarded. He states:
In emphasizing the normative benefits of institutions in copyright generally and in fair use in particular, I do not lose sight of the fact that the doctrinal question is whether an individual instance of reproducing or distributing a work of authorship should be treated as “fair use” or “unfair use.” For a code of best practices, the question is not merely the existence of the practice but whether the individual user is operating within it – that is, whether the individual is honoring the code.
In his final argument in favor of a best practices code, Professor Madison turns to the best practices code adopted for documentary filmmakers, which was produced by the same group that is currently drafting a best practices code for academic and research librarians. The documentary filmmaker’s code “generated related institutional change” that in turn increased the distribution of knowledge, which is one of the goals of copyright law.
In conclusion, Madison explores the critiques of best practice codes. The primary of which is that it does not effectuate real law reform, which is the best possible remedy. He also points out that private groups do not have authority to appropriate for itself the power to decide what “is” or “is not” fair use in any context as this is the sole authority of lawmakers and courts. However, by documenting these agreed-to understanding of the law a persuasive argument is made upon which the makers and interpreters of law can rely when the time for reform finally comes.