I am excited to welcome Dave Hansen to our Fair Use Week blog post series, as he examines and celebrates the functional and mundane aspects of fair use! – Kyle K. Courtney
Fair Use is Boring
by Dave Hansen
“We live in interesting times” is a statement I’d prefer to not hear again. Over the last couple of years we have faced protests, insurrections, pandemic, fires, wars and so on. And in addition to those real life problems, the law has struggled to adapt. Rules that were once thought reasonable no longer made sense. We needed flexibility that hasn’t always been there. However, one bright spot has been how copyright law has for the most part navigated these emergencies successfully, largely due to the power of fair use.
Described as an “equitable rule of reason,” fair use aims to “avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Fair use, for example, is the reason teachers and librarians have felt empowered to continue helping their students learn by reading aloud to them (gasp!) online, even though strictly speaking such uses may, strictly speaking, be considered an exercise of the copyright owner’s public performance rights. It has also helped make other uses supporting teaching, learning possible, by allowing instructors to share excerpts of books, or clips of movies, with students through class websites. Those kinds of uses illustrate the elegance and speed with which fair use allows us to adapt to emergencies to keep teaching and learning, and ultimately creativity, moving forward.
Of course, sometimes that “equitable rule of reason” means that we can have disagreements about what qualifies as fair use, especially in new circumstances. This is true with cases like with the National Emergency Library and the copyright lawsuit that it perpetuated. That lawsuit challenges whether and how libraries, like Internet Archive, can provide digital access to digitized books in times when physical analogs can’t be accessed. Reasonable minds can differ about what circumstances make that permissible, hence the lawsuit. But even then, fair use helps us, by giving enough legal flexibility in the system to invite organizations like Internet Archive that are willing to take a risk and make the argument, and then allowing for a reasoned resolution of the issue by the courts. That’s a feature, not a bug. Without it we may foreclose all sorts of new ways of promoting learning and progress for fear of an otherwise stifling, stiff copyright system.
But, I’m tired of emergencies. So I want to close out Fair Use Week by asking you to celebrate with me how fair use can be pretty boring, too. Although we sometimes talk about fair use as an “exception,” in reality it’s’ not some special aberration from the norm; fair use is baked into the balance of the Copyright Act, as it is in all sorts of everyday activity. These uncelebrated, boring aspects of fair use are an important part of what makes it so powerful. “Equitable rules of reason” only really work when they match what most of us view as actually being reasonable. We use it all the time:*
- Copy a photo for a class assignment? Fair use.
- Back up your mp3 collection? Fair use.
- Record a game on TV, to watch later? Fair use.
- Quote an original source in your class term paper? Fair use.
- Send a text to your mom with a funny picture from the internet? Fair use.
- Create a meme! And share it with your boss? Fair use.
- Forward that crazy email thread from your neighborhood listserv to the local news? Yup, fair use.
Ok, so I might be getting suspiciously specific here, but you get the point. There are all sorts of ordinary interactions we have every day with copyrighted works, and for a large number of them, we’ve somehow navigated through the strictures of copyright law in ways that have allowed us to continue to learn, explore and even laugh, without winding up in court. Fair use is an important part of how we get there. For most of us (not me) who don’t obsess over fair use, we don’t even know we’re using it.
So, for those of you who are tired of doom-scrolling and reacting to the emergency of the week, take a breath. Look around. And geek out about how cool this little corner of our copyright system is, to make so many aspects of modern life more reasonable, and even a little bit boring.
* Yup, there are other good legal rationales to support some of these uses. My point isn’t that fair use is our only hope for allowing ordinary, reasonable behavior. But it sure does help.
David Hansen is the Associate University Librarian for Research, Collections & Scholarly Communications at Duke University Libraries. Before coming to Duke he was a Clinical Assistant Professor and Faculty Research Librarian at UNC School of Law. And before that, he was a fellow at UC Berkeley Law in its Digital Library Copyright Project.