Friday, March 09, 2018

Using Fair Use

PowerPoint slide with a Fair Use example
During Wednesday's webinar for ALA entitled "Understanding and Defending Copyright in Your Library: An Introduction", I talked about Fair Use. I contend that Fair Use is the concept which everyone uses and few understand.  It is easy to wave your hands and proclaim that your use is fair.  It is more work to decide whether your use is truly fair in your judgment.

When you consider Fair Use, there are questions that will be asked.  You might use some or all of these:
  • What is the situation?  
  • Why do you want to use this work?
  • What is being used and why?
  • How much is being used?
  • Will the use affect the market?
  • Can you use less of the work and still be effective?
  • Would it be possible for people to obtain the work themselves?
  • Can you find something similar that is in the public domain or which has a Creative Commons license?
  • And...what is the real risk if you use the work?
Even asking and answering a few of those questions requires patience, especially if some investigation is needed. Yet it is being patient enough to understand, consider and decide which can make the difference.  And if you decide to locate a different work, that can take time.  (I have spent more time than I care to admit finding images in the public domain or with a Creative Commons license to use in blog posts and presentations!)

During the webinar, I walked through four examples.  Honestly, as I talked about them, I began second guessing what I had written! Had I been true to the four factors?  Had I trivialized the details?  Could I make a different decision?  My internal conversation was running rampant, because I wanted to be sure of the path I was leading people on.  That internal conversation can lead people to want to make a quick decision and get it over with, yet it is that internal questioning that teaches us more about copyright and Fair Use.

Above is one of the slides I used.  The example is that of a patron who wants to make multiple copies of a recent political news article to distribute on the street.  Being on a college campus and around activists, this is a situation that I can imagine occurring.  While it would be easy to skip to a conclusion and decide that the use was not fair, I went though the four factors.  I noted that the last two factor - amount and substantiality as well as effect on the market - opposed Fair Use.  I believed that the nature of the copyrighted work (a news article) favored Fair Use.  However, I felt that the first factor (nature of the use) was unclear, because it seemed to me that it could go either way.  The result would either be a toss-up or a situation where the use was clearly not fair.  Given the third and fourth factors, I think you would agree that the use really would not be fair.  Yes, a bit of work for a result that we might have guessed, but it is that work which would hopefully stop us from abusing someone's property.

I encouraged webinar participants to walk through examples with coworkers, as a way for everyone to get comfortable with Fair Use.  The conversations which would emerge would be educational.  Even any disagreements would be educational.  If those conversations and disagreements lead people to learn more about Fair Use, then that's a good thing. 

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