Guest post by Founding Member Michael Madison
For a week about fair use, let me make fair use about authorship, and the shared goals of copyright, and in a very specific way.
First, some background: I first wrote at length about the purposes and law of fair use in a long paper published in 2004, A Pattern-Oriented Approach to Fair Use. I surveyed fair use cases and offered four related conclusions: To begin with, fair use decisions were (and are) more predictable and consistent than is commonly thought, and fair use decisions can be clustered around the idea that fair use should align with a โpatternโ of creative practice. More broadly, as I wrote in a later paper (Some Optimism About Fair Use and Copyright Law):
creativity and knowledge production is an emergent property of patterned social behavior; โฆ those patterns exist concurrently with but distinct from market-based production of knowledge goods by individuals and firms; [and] those patterned behaviors can be identified as institutions, and exempting those institutions from the discipline of copyrightโs scheme of exclusive rights is likely to increase the social welfare produced by the copyright system as a whole and is likely to not diminish the social welfare produced by the market side of copyright
In short, whatโs good for fair use is good for authors, and vice versa.
More important, however, that paper was timed โ coincidentally โ to align with the emerging โBest Practices in Fair Useโ project at the Center for Social Media (now Center for Media and Social Impact) at American University, and the efforts of that projectโs leaders, Pat Aufderheide and Peter Jaszi.
The key insight motivating the Best Practices project was a close cousin of my pattern-oriented argument: That the power of fair use lies not merely with individuals but, importantly, with communities โ creative communities. Authorial communities.
Since 2006, CMSI has partnered with a number of not-for-profit organizations to produce โstatementsโ of best practices for members of specific creative communities that are grounded simultaneously in deep knowledge of each communityโs sense of its own fair creative practice as well as in generally accepted principles of copyright law. The full roster and text of the statements are available at the CMSI website, at http://www.cmsimpact.org/fair-use (disclosure: for several of the statements, I served on a Board of Legal Advisors that reviewed them prior to publication).
The Statements, like fair use itself, are imperfect in any number of ways. But the perfect need not be the enemy of the good. And itโs very good indeed to have a means for recognizing that creative communitiesโ practices inform the shape of fair use law, and allowing those communities to take active and considered part in articulating how fair use should work for them. They are an important reminder that while copyrightโs exclusive rights are important to authors as creators of individual works, fair use is equally important to authors as members of communities.
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