Thursday, July 29, 2010

Article: Urban Copyright Legends

The June 2010 issue of Research Library Issues includes a four-page article by Brandon Butler entitled Urban Copyright Legends. The legends that he addresses are:
  • You cannot rely on fair use to protect a general policy because fair use determinations are made on a case-by-case basis.
  • Fair use is a defense, not an exemption, and accused infringers will bear a heavy burden of proving in court that their use was fair.
  • If a license is available, then your use ‘harms the market’ for that work and cannot be fair.
  •  For digital transmissions, Section 110 trumps fair use. If a use does not qualify for 110 protection, it cannot be a fair use.
  • If a video is marketed for educational use, it cannot be transmitted digitally under 110(2).
Read the article to understand why Butler sees these are being legends.

I can see this article starting many useful conversations, especially around his first urban legend.  General policies are good, but I expect that some (like me) would fear that such a policy would be abused.  The only way to ensure that such a policy is not abused is through copyright education; something that we don't do enough of.


Mitch said...

This is such a tough topic to deal with, especially for bloggers and the subject of images. In a discussion with a photographer friend of mine, I said that if I go onto Google and see an image multiple times that there's no way I know who really originated it, and in my mind that should allow me fair use. He stated that it's always up to the person who wants to use an image to try to figure out who the originator was for copyright protection. I just don't know how it would be possible under most circumstances, and thus I don't know whether, if push came to shove, I and everyone else could be hit with a copyright violation for it or if fair use, based on our interpretation, would at least lessen things.

Good subject to touch upon; thanks.

Jill Hurst-Wahl said...

Mitch, BTW, sounds like you might be confusing fair use with the public domain. Just because a photograph is widely used does not mean that it is in the public domain. It is still under copyright protection for the life of the creator, plus 70 years. Only then will the image enter in the public domain.

Mitch said...

You're probably correct, but it's still confusing. If there's a copyright mark on the image, or some kind of identifier, it's easy. If not, you just don't know.

Jill Hurst-Wahl said...

Mitch, a photograph does not have to carry a copyright mark or statement for it to be protected. Once it is fixed, it is protected under copyright law. It will only enter the public domain (in the U.S.) 70 years after the death of its creator.

If you find a photo and are unsure if it has passed into the public domain (and it does not have a Creative Commons license), use the photo at your own risk.