Fair Use and Academic Freedom: Asserting Fair Use Rights in Communication

Preconference, Thursday May 21th, 1-5 pm, 2009

• A graduate student tries to file his M.A. thesis, but his data set, in an appendix, is a collection of print advertisements for children's fashion. The university decides that he can't file it until he gets permission from the copyright owners.
• A professor wants to run a short clip from a major motion picture in a conference presentation, but her college library won't lend the DVD, knowing that she will use it outside a classroom.
• Graduate students are running a survey with several classes of undergraduates in communication classes. One part involves reacting to a popular cartoon character. The professor is concerned that it may not be legal to reproduce the cartoon character without a license.
• The communications department has been asked to contribute to the university's open courseware initiative, and the professor who teaches the intro class is happy to oblige. But the university counsel returns the set of PowerPoint slides asking for all copyrighted material to be removed. This makes the slides look like Swiss cheese.

These are just four of proliferating problems in copyright that we face in doing our work. Increasingly, communications scholars are finding their routine work in scholarship and teaching affected by the high-anxiety copyright environment. This problem is accelerating with the trend toward file-sharing, distance learning, electronic teaching platforms, and, of course, the digital production of all work by students and scholars.

Communications scholars can address this problem themselves, with research and education. This preconference will gather ICA members who want to do just that.

The key tool we will use to do that is a clearer understanding both of our problems in doing our core tasks of research and teaching, and a clearer understanding of the law. These are the tools that cinema scholars, film production professors, documentary filmmakers, and K-12 media literacy teachers have already used to improve their capacity to do their work. (See http://centerforsocialmedia.org/fairuse for more information.) What they did was to document the kinds of problems they faced, and on the basis of that documentation to deliberate on how to interpret the copyright doctrine of fair use. The resulting product is a code of best practices in fair use for their field. Such codes have transformed practice, reclaiming what once was ordinary and routine.

Fair use is the most flexible and powerful part of the copyright law that permits reuse of copyrighted material without permission or payment. It is designed to permit reuse when the benefit to society clearly outweighs the harm to the owner. Benefit to society is, most of all, in the creation of new cultural expression that doesn't significantly undercut the market for the original material that the new work uses.

Fair use has been dismissed by critics who say that it's too hard to interpret safely how to use it. They have been proved wrong by the scholars, filmmakers, and teachers who now use the codes of best practices in fair use that they (within their organizations) designed. Lawyers in their own organizations, gatekeepers such as broadcasters, and even insurers widely use these codes to make their own decisions about risk. Communications scholars can do the same.

In this afternoon session, we will discuss the problems we have encountered in the use of copyrighted material for our work; we will share the model developed by the Center for Social Media and Washington College of Law for developing codes of best practices; and we will develop a research project to develop a code of best practices for communications scholars. This project will receive funding from the Ford Foundation through the Center for Social Media's Future of Public Media project, which will contract with an advisory group of legal experts. We expect to present the results for approval next year to the ICA policy committee.

The costs of this meeting are partially defrayed by the Ford Foundation, through the Future of Public Media Project at the Center for Social Media at American University, and the John D. and Catherine T. MacArthur Foundation, through the Media Education Lab at Temple University.

This event will be open to about 45 people. The format will be that of a workshop; there will be no paper presentations. Interested in working on this project? To apply to participate, send a one-page document including: a short biography (one paragraph); and description (one to two paragraphs) of your interest and/or research on this topic, suitable for posting/ publication. Send either in email text or Word attachment to Patricia Aufderheide, socialmedia@american.edu, with "ICA preconference" in the subject heading. Applications will be accepted up to the room limit on a rolling basis.