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Posted by Mark Hine at 3:45PM   |  Add a comment

DISCLAIMER: I am not a lawyer. None of the following should be considered legal advice. It is based on opinion and experience. Please consult legal counsel for accurate interpretation of the concept of fair use and copyright. This information does not represent any official position of Ithaca College or any entity associated with Ithaca College.

There was a time when the words 'fair use' were not uttered, at least in todays context. When the worst crime committed by so-called 'intellectual property thieves' was photocopying a book. This was, of course, before the advent of the VCR and the Internet. Then came digital media and its tools- the time base corrector, the DVD burner and, yikes, ripping software, not to mention file-sharing web sites.

Industry responded. Government responded. Consumers responded. Each offering there own definition of the fair use of media, digital or otherwise. The problem lies in the murky waters that the term fair use floats upon. There are defining principles of fair use but these are mere guidelines. In my opinion, copyright regulation has been handled very poorly in this country. There should be a definitive method for determining whether a piece of media can or can not be used in a classroom, on-line or otherwise - in whole or in part. Black and white. A yes or a no. Alas, there is not.

The concept of fair use is meant to provide a means for libraries, educators and news media to use copyrighted works in a sensible way. To critic and learn from. To derive meaning. To educate the public using factual resources. However, consider the fact that a person (or persons) has invested time gathering the resources necessary to author a work. Consider further that this is their livelihood. In essence, the work has value much like the construction of a building or the manufacture of a toaster. In our country, we assign value to the development and publishing of intellectual property. We assign it value as we do other 'properties'.

Property owners have rights. But can we assign the same rights to a book or a piece of music that we do a building or an object? Once I buy my house, and presumably pay off the mortgage, I own it. Not so of a CD or digital music file, software or downloadable e-book. I am not the owner. I have simply purchased the right to listen or view the property. In other words, I have license to view or listen - prescribed by the copyright owner. There in lies the rub. If you purchased a book twenty years ago, did it ever occur to you that what you were buying was not a book, but a license to read that book? The paper is just the delivery mechanism. If I gave the book to a friend I have transferred my license to a new owner. I could even sell my book or LP  to a new owner. The point is I no longer retain the rights to that work.

Now we have digital delivery mechanisms, primarily the Internet. And licenses have become much more critical. When a work is in a digital format it is easily distributable and copyable - despite industry safe guards and warnings.  So we must proceed with additional caution in an age of digital delivery to protect authors and copyright holders so that they can create new works funded by the sale of unique units of their authorship.

I think it is clear that when a file is illegally distributed the chance of a person purchasing a unique unit, as I have called it, becomes less likely. If I sell 1000 copies but 100,000 copies are illegally distributed you can clearly see the financial impact of such a scheme. In response, warnings and other security mechanisms have been invented and re-invented to protect copyright holders. But my favorite is the simple copyright statement found in almost every commercially published book:

"It is unlawful to duplicate any portion of this work, except for your own personal use. You may not redistribute, resell, or publish this information in any way without the expressed written consent of the copyright owner" [excerpted and compiled from multiple sources]

Look familiar? The author is strictly limiting your ability to use this material. There are no exceptions stated or implied except to obtain the permission of the copyright holder. So we start from a condition of what is known as an affirmative defense. Fair use is considered an affirmative defense when breaking a copyright law. It is not an exception to copyright law. So we return to the beginning. How do we define fair use when the rules appear subjective? 

The call to action here is simple: attempt to get permission and avoid the fair use argument altogether. Then consult the DMCA, the Teach Act and the many resources available to assess whether or not your use is indeed fair, which unfortunately is, in and of itself, a supremely subjective word. And remember, in our culture, if books and music and other intellectual property were free - we'd be writing our own.



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