An article, Myths About Fair Use by Patricia Aufderheide, appeared in today’s issue of Inside Higher Education. Professor Aufderheide is the Director of the Center For Social Media at American University and a long time advocate of fair use. The Centre has been at the forefront of educating people about fair use; they offer guidance for best practices in many areas including film, communication and media literacy. While fair use and fair dealing differ in specific language, the challenges that Professor Aufderheide addresses are common to both. In her article, she begins by saying:
Academics potentially enjoy some of the greatest benefits of U.S. copyright law’s doctrine of fair use — which lets them use copyrighted material without permission or payment, under some circumstances. Now if only they knew they did. In Peter Jaszi’s and my research for “Reclaiming Fair Use”, which charts the resurgence of fair use and explains how to use it, we came across as much mythology as knowledge among our colleagues.
It is interesting that she describes the United States as encountering a resurgence of fair use. Fair use is a very old practice; its first judicial appearance occurred in 1841 in a dispute over competing biographies of George Washington. Known as Folsom v. Marsh, the case is credited to be the starting point of shaping fair use as an identifiable practice. Yet fair use did not officially enter into American law until 1976.
The past 170 years have been eventful for fair use in the United States. It encountered its share of growing pains, but as copyright’s depth and breadth expanded so too did the impetus to better understand the remaining limits on copyright. Because it is through its limits that copyright can achieve what we ostensibly believe to be its purpose: furthering creativity and innovation. Those activities are heavily reliant on building upon past work; fair dealing and fair use are the only measures within the law that allow existing copyrighted work to be freely used in the practices endemic to creativity and innovation. Hence the resurgence. In terms of making the best use of fair dealing, Canada could learn much from the experiences of the United States. We are in an enviable position of being offered maturity without enduring the trials of adolescence.
However, deeper understanding of fair dealing will take some time to come to fruition. Fair dealing has greater visibility than ever seen before, yet it has come with a slightly unkempt appearance. Despite the vital role fair dealing plays in creative engagement, recent discourse is confined to emphasizing that copies of curriculum materials must not be made freely available en masse to students. Arguably, this is important; faculty need to be informed that fair dealing is not a means of unbridled redistribution. However, for the faculty that will only know of fair dealing through these events, fair dealing has been reduced to prohibition on behaviour that lacks legitimacy to begin with.
Fair dealing is much more than an uninvited guest. As Professor Aufdeheide’s work attests to, fair dealing is a dynamic and ubiquitous element within academe.