Open licensing and fair use: Who’s rights are we protecting?

This is my first post related to the novice badge of the introduction to openness in education. I haven’t been reading other people’s posts so far for the fist topic (Open licensing), so I might be repeating a lot of what others have said, but I just need to get this out šŸ˜‰

It seems pretty clear, according to the view of Larry Lessig, that the role of copyright in the United States has been, from the very beginning, to promote the spread of knowledge and culture. Without some sort of protection of the creator of the original work, trolls would be waiting for smart people to come up with profitable cultural artifacts to steal them and make a profit.

As argued in Against perpetual copyright, physical property and intellectual property are not the same. Physical property is rivalrous, which means that if I have a copy in my possession (a CD, for instance), and I give it to you, I don’t have the CD anymore, and cannot enjoy its sweet melodies in my Walkman. Once this precious CD has been ripped into evil MP3s, it means that I can send you a copy of the songs, and still enjoy the music on my iPod. Intellectual property is therefore non-rivalrous, and digital technologies have rendered copies as good as the original.

If you’re a professional songwriter, painter, architect, etc., there is definitely a need to protect your line of work. This is your bread and butter, and you should be able to make a living out of it, absolutely. Unfortunately, the copyright law has tilted so hard in favor of the owners of the intellectual property (with extensions to the length of time that copyrighted materials remain protected and laws to enforce copyright like the Digital Millennial Copyright Act) that the public is now suffering from a lack of access to cultural artifacts that are a part of the fabric of society.

I have been a Creative Commons advocate for many years now, but I don’t believe Creative Commons have reached a critical mass of cultural artifacts to really be useful in offering the creative works people are hoping for.

I had the privilege of attending a session by Renee Hobbs at the University of Delaware’s Winter Faculty Institute back in January, and she opened a lot of faculty eyes on the possibilities included in the doctrine of fair use.Ā Fortunately, in the U.S. at least, fair use can cover a lot more of cases than most would assume, especially in educational settings. As stated in her Copyright Clarity book (Kindle edition, location 677):

If an employee of a nonprofit educational institution has made a rational and reasonable fair-use determination, he or she is not likely to be targeted for an infringement lawsuit because of section 504(c)(2) of the Copyright Act of 1976, the reasonableness standard.

Under this provision of the law, a court must remit statutory damages to zero in any case where an infringer believed, and had reasonable grounds forĀ believing, that his or her use of the copyrighted work was a fair use.

The four criteria to make a fair use assessment of your use of copyrighted materials are the following:

  1. The purpose of the use.
  2. The nature of the work.
  3. The amount of the work used.
  4. The effect on the market.
Fair use requires judgement. Overall, if your use of someone else’s work is transformative (and not derivative), you’re usually ok. As an educator, you have to build your fair use case. Until someone sues you for copyright infringement and drags you to court, you won’t actually be sure that your use is fair. Only a federal judge can actually make that final call.
Copyright is a mechanism that protects both owners and users, don’t let anyone tell you otherwise!

One thought on “Open licensing and fair use: Who’s rights are we protecting?

  1. Pingback: Claiming my novice badge for #ioe12 | Open Reflections

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