Copyright and Creativity: Getting Balance Back

Pat Aufderheide

Center for Social Media, School of Communication, American University

How do copyright

policies inhibit the growth of

digital culture?

Purpose of Copyright

One Purpose :

To promote the creation of culture

By:

• Rewarding creators with limited monopoly• Encouraging new makers to use existing culture

Why balance?

All culture created on existing culture (we used to know that)

How we forgot balance:

•Copyright term extension•Default copyright•Derivative works•Large copyright holders’ anti-piracy tactics

Two challenges:

Collapse of business models (incumbents’ problem)

Copyright imbalance (emergent users’ problem)

Business models eroding

P2PPiracyDownloading Etc

The Imbalance Problem

When we try to use existing culture to make new culture:

• It’s hard to license• It’s hard to find out who owns it• We’re locked out and punished if we

break the locks• We’re not sure what the balancing

features of our laws are

Licensing

• Usually time-limited• Too many layers • too many regions

Solution:

+

Build an Artificial Public Domain by Tweaking

LicensesGPL (free software license) & Creative

Commons licenses …enabling new pools of contentOpen source softwareOpen CourseWare

Portugal’s first branch of Students for Free Culture,

started here!

“Orphan Works”

Tech/Legal Pre-emption of Balancing Rights

•DMCA (US)•EU Copyright Directive

Patches:

• Citizen participation in legislation (NZ; France)• Press on exemptions (U.S.)

Using Balancing

Rights

Fair Use

U.S., Israel, Philippineslegal, unauthorized use of copyrighted

material--under some circumstancesFlexibleBroadAdaptable

The list approach:

Fair dealing (Commonwealth)Fair dealing (UK]Many many exemptions to EU laws (national basis + Berne convention)Flexible dealing (Australia, more like fair use)

CENTERFORSOCIALMEDIA.ORG/FAIRUSE

AU’s Fair Use Project

Fair Use Project

Judges love fair use

They ask: • Did you transform the use? • Did you use the appropriate

amount to satisfy the transformative use?

PLUS: What are your community’s expectations/practices?

Individuals fear…

• Will I get it wrong?• Will I get sued? ($125K+ per

infringement!!)• Will my boss/librarian/client get angry?

BEST PRACTICES

Education

• Knowledge of the law • Awareness of problem • Define interpretation of fair use

Communities define fair use for themselves:

• Documentary filmmakers

• Film scholars

• Media literacy teachers

• More

Doc

Results:

• Broadcasters program films• Cablecasters program films• Filmmakers develop new kinds of

projects• Television/web companies expand

their plans• All insurers of errors and omissions

insurance now accept fair use claims

English teachers

Media literacy categories• Teaching with copyrighted material• Using copyrighted material in

curriculum materials• Circulating curriculum materials with

copyrighted material in them• Student use of copyrighted materials

in their work• Circulating student work

Online video

Online Video Code

• Comment/critique• Illustration/example• Accidentally/incidentally• Preserve/recall• Discuss• Collage

U.S. movement:

Film scholarsArchivistsOpen Courseware Int’l Communication Ass’nBusiness (“we wouldn’t even be talking if…”)

First steps of international movement to use exemptions:

• Canadian filmmakers• Mexican filmmakers • EU filmmakers• South African filmmakers

To join the movement:

•Document the problem •Research the reality •Define the opportunity

Pat Aufderheide

Center for Social MediaSchool of Communication American University Washington, DC paufder@american.edu202-885-2069

Please feel free to share this presentation in its entirety. For excerpting, kindly employ the principles of fair use.