Friday, April 20, 2012

BioOne: by M. Wessel "How Much Does Fair Use Fix in a Digital Age?"

DISCLAIMER: following notes are mine and may not represent the accurate views of the speaker. 

"How Much Does Fair Use Fix in a Digital Age?"
Madelyn Wessel, JD, Associate General Counsel, University of Virginia. BioOne 9th Publishers & Partners Meeting. Washington, DC. 20 April 2012.

"Librarians are some of the best copyright lawyers out there."

Included a general discussion of fair use (the four factors). Fair use does NOT give you a free pass to use copyrighted material.

2 Live Crew and Roy Orbison will be the touchstones of the talk. Uses the court case of 2 Live Crew v. Acuff Rose (Orbison's publisher) that had been a key element of reuse/remixing. Without this court decision, much of Larry Lessig's work wouldn't exist.

Some examples of other cases:
1. Rogers v Koons (1992). Koons loses case where he used a photograph to make a sculpture. Court says it's not a parody, that it was all about making money, and was fully copied.

2. Blanch v Koons (2006). Koons wins. Copied just a bit of a Gucci ad, changed it a bit, created something that was "transformative". Used it for "the creation of new information, new aesthetics, new insights and understandings."

3. Shepard Fairey v AP (2009)
Fairey sued AP FIRST, as a defensive gesture. Complicated case, but Fairey loses. Remember that Fair Use does not justify being lazy. Also raised question about the role of judicial exploration of artistic motivation.

A number of cases since 2003 have verified that Internet functionality (none to Supreme Court yet) because the underlying technologies depend on copying and indexing (servers store data). The technology is also a friend because it can assist in tracking violations.

Some of these cases have even justified the copying of whole works even when copying is against the interest of the creator (e.g. student papers copied into plagiarism detectors by instructors).

4. Bill Graham Archives Case (2006)
Grateful Dead poster images used in an "artistic collage" format in a book. Dorling Kindersly did not want to pay for use of the images; they used little thumbnail like images on a page. Court said DK, though they used full images in a commercial setting, the usage was fair and setting high fees would discourage further creation of new works.

5. Sedgwick vs Delsman (2009)
Disgruntled employee uses pictures of his former bosses in "Wanted Posters"  to mock the company. Segwick wins.

6. Gaylord v US (2010)
Postal Service sued for use of Korean War Memorial in a stamp. Original photograph was properly licensed, but designer of memorial sues and wins. Unclear why.

6. Cariou v Prince (2011, under appeal)
Prince used aboriginal photographs and adapts them; court decides against the artist. There is risk when a fair use case depends on judicial perception of your motivations.

Some old fair use myths are in the rear view mirror:

1. Market Myth. Just because a market exists, does not mean that you can't use it;
2. You can't copy whole works. Internet technology cases and greater social good have proven this wrong;
3. Fair use is legally risky. No longer true, though owners still use it as a scare tactic; state institutions (libraries, universities, etc.) especially by non-profit educational use is increasingly upheld;

"Whenever a copyright law is to be made or altered, then the idiots assemble." Mark Twain's Notebook, 1902-1903 (

1. Cambridge UP v Beckler (in process)
All about electronic course reserves. Courts have not been friendly to the idea of corporate, for-profit copying w/out permissions fees. Unclear how these will influence this case.

2. Corporations v UCLC (in process)
UCLA wanted to stream films to students (instead of in classroom showing or having screening rooms), suit brought to stop this. Question in the case include is this fair use (esp. if there are protections to stop redistribution, etc.)? With the changes in the types of instruction, make this fair use?

3. Author's Guild v HathiTrust, et al. (in process)
Does Hathi's storage of Google created files violate the rights of authors and publishers? Frustration with slowness of the Google Books Settlement may have led Hathi to move to share content a bit early in the process. Case has lots of angles and the potential to create a real mess in higher education.

Tensions inherent in outdated laws based on an analog universe:
  • Section 110(1) no longer describes what happens in education
  • Section 110(2) failed to address many reasonable teaching needs
  • Section 108 is an outdated mess
  • Section 107 is explicit references as an alternative, never precluded basis for additional activities
If these cases have negative outcomes:
  • will fuel open access initiatives on campus
  • stimulate additional sponsored research open access
  • cause some institutions to rethink policies providing faculty full rights to assign and transfer scholarly copyrights
  • create important incentives to start using Section 203 (1976 Copyright act) allowing termination of transfer after 35 years
  • make the existence of non-profit science and scholarly publishers ever more, critically, important

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