Fair Use for Social Justice

This week is fair use week; and as I spent my time preparing and giving workshops on how to harness the power of fair use within the walls of the ivory tower, I also thought of the many ways in which fair use can be used as a tool for social justice.

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Slide from “Figuring Out Fair Use” by April Hathcock, CC BY-NC

Fair use is an exception to the exclusive rights of a capitalistic copyright system that allows owners to exclusively own and monetize works for about a century after their death. Though originally created “to promote the Progress of Science and useful Arts” (U.S. Const. Art. I, §8, cl. 8), it is now widely used to ensure the ability to reap financial award from “original works of authorship” (17 U.S.C. 102)—sometimes by the author but most often by the corporation to which the author has assigned their rights.

In the midst of this bleak copyright environment, there exists fair use: an imperfect, but powerful copyright exception that allows limited use of materials without permission for purposes “such as criticism, comment, news reporting,” and more (17 U.S.C. 107).

Despite popular belief, fair use is a right and not just a defense. You don’t have to wait until you are sued to assess your use and determine whether it’s fair. You have a right to make that determination as you contemplate your potential use.

And that determination is naturally flexible, allowing for changes in the way copyrightable creations become “fixed in any tangible medium of expression” (17 U.S.C. 102) and the various ways in which fair users may need to exercise their right to use. The famous “four-factor test” is in fact a “four-factor plus test,” allowing for the consideration of additional factors as circumstances may warrant (17 U.S.C. 107).

What does all this have to do with social justice? Like with any socio-legal structure or process rooted in a society of capitalism and oppression, copyright law affects different groups and different forms of expression differently. There is privilege in copyright law. There are haves and have-nots. There is the mainstream and there is the marginalized.

But with fair use, there’s at least a teeny bit more equity in the system. The haves are not able to exercise monopolistic power over their works because their power is not absolute. There are limits and exceptions, allowing the have-nots to benefit from information and cultural materials being offered at high cost in the market.

And it does come down to the high cost of information in the market. While plain data and ideas—which make up the basis of information—are not copyrightable, much of our information becomes locked down in copyright because of the fixed and tangible nature of how we create and value knowledge. White, capitalist society is not an oral society. Whatever there is to know, whatever there is that is worth knowing, is “fixed in any tangible medium of expression” and subject to the market forces of copyright. Information is available and there’s tons of it, but it is far from free.

Those of us working in libraryland should readily see how important fair use can and should be to our social justice mission of providing information to all. And we should also realize how this same power of fair use is essential to providing some form of equity for marginalized groups.

Just look at what happens when fair use fails: The precedent set in Biz Markie’s loss of his sampling case nearly crippled hip-hop and virtually all other forms of black music that rely on sampling previously created rhythms and beats to create new musical creation. This is a tradition that harkens back to the drum circles on the African plains and shared oral culture, none of which finds value or validation in a white, capitalist society. What is more, this lack of fair use continues to plague the black music industry; just ask Robin Thicke and Pharrell Williams.

In the realm of higher education, we see the potential trouble a failure of fair use can cause in the lawsuit against Georgia State University, a public institution with a diverse student body, located in the heart of a city comprised of over 50% people of color. Librarians, faculty, and staff were working to save students on exorbitant textbook fees by harnessing the power of fair use to make educational materials—and the valuable knowledge they contain—available on password-protected course sites. While the case, through all its permutations, seems to be headed for a positive note for the university and its students, it is still an example of how much fair use is desperately needed. This case has been going on for eight years and still isn’t closed. All for the sake of providing students from diverse backgrounds with the materials they need to learn.

We need fair use in order to provide information to more people, in order to break beyond institutional, market-driven barriers that function to keep information locked away for a high price. Fair use is the tool we use to make the creation and distribution of knowledge and culture more equitable. Fair use is a tool we use to build a more just society.

Ownership is about Access: Intellectual Property in the Humanities

This post is the text from a talk I gave a year ago at the former NYU Humanities Initiative (now the NYU Center for the Humanities). 


As both a lawyer and a librarian, I look at the issue of who owns what in the humanities from a dual lens of scholar and practitioner. 

Generally, when you talk about who owns what, you’re really talking about who gets to make money off of what. But in academia, and especially in the humanities, it isn’t about gaining financial capital rather scholarly capital. So really the question of ownership is a question of access; who owns what is about who controls access to what.

In fact, this question of access touches every aspect of the research lifecycle. You find others’ research, analyze it, ingest it, use it to create and publish own research, which is then made available for others to find and use and cycle begins again. At every point in the cycle, access is the key, both in what we as scholars use and what we create.

That’s my role—helping researchers navigate questions of ownership, access, and control of what they use and what they create.

Sometimes this question of access even goes beyond ownership to just a question of control, particularly in things we use.

For example, NEH and Mellon just announced a new grant program to fund the republishing of out-of-print humanities books as Creative Commons licensed open access e-books. Part of the funding is to go toward clearing the rights for these books. Ultimately, it’s not a question of owning the books but of providing access to them where previously there was none.

It’s all about achieving balance between rights of authors and access for other scholars and public.

There’s a similar consideration when thinking about the things scholars create—the goal is to achieve balance between providing access to one’s work and retaining a certain level of control over the work (in the form of copyright or other intellectual property rights).

This discussion usually takes place on the extreme ends—new scholars seeking to embargo their work in hopes of increasing the chances of getting that first monograph deal versus making work available open access to everyone at all times. The discussion can be very black and white in that sense. The real issue, however, is in the gray area in between. And the answer is a personal one for the scholar creator that should be made with all the relevant facts.

One of the things I do is help scholars gather those facts: Helping them figure out that they can negotiate the terms of a publishing agreement for their new monograph and retain rights to their work. Or making sure they know they can choose of one of various Creative Commons licenses to help make their work readily available to others while still retaining a certain amount of control.

A scholar can even choose a combination of the two, as one social science faculty member has done, by negotiating a hybrid model with a publisher—selecting traditional publishing for a fixed period of time followed by making the monograph available open access.

There are so many options, it’s important to think about them early and to think long-term. Thinking long-term about a research project can be difficult when in the midst of the project. You’re looking to get your work completed and published now; long-term access isn’t always a priority. But there are people like me and resources available in the library to help with this kind of long-term planning.

Ownership doesn’t have to be a barrier to access in the humanities; instead, it can, and should, be an asset.