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