Whither Fair Use?

“Fair Use” Photo by Lawgeek

I have been unable to get Henry Jenkins’s post “Why Universities Shouldn’t Create “Something like YouTube” (Part One)” out of my head for the last two weeks. I keep on returning to his candid and precise discussion about the “very timid and conservative legal approach” MIT’s Open Courseware takes towards Fair Use. And his argument is dead on, how can he “package” a course that deals with a precise, practical, and theoretical discussion of our mediated culture if he can’t share and re-contextualize the very media that is the basis for his course of study? And what Jenkins suggests about his own concerns with the Fair Use doctrine at MIT, must also be the case for a large number of professors around the world who need to “meaningfully quote and re-purpose existing [copyrighted] materials” in order to do their job effectively.

Yet, many have turned their attention to Creative Commons licensing, and there can be no question that this is a monumental victory in the increasingly war-like world of negotiating copyright. The fact that their have been so many images, texts, articles, and videos that have been produced under this license should be applauded roundly. At the same time, as Jenkins notes in Part 2 of this article, we still “need to be able to provide excerpts from other people’s media — especially corporate media,” resources that almost always would not be licensed for re-use with attribution, etc. And this is where the opportunity to buttress the power and impact of Fair Use has failed, we have focused so much energy on pushing folks to license their own work as Creative Commons, that the discussion surrounding Fair Use has waned to the point that sometimes I even forget it is still a viable option. So his Jenkins’s position as a “conscientious objector” to the Open Courseware project is important because it frames, at least for me, that K-12, Colleges, and Universities avoid the discussion around Fair Use at their own intellectual peril, and basically cede an amazing amount of control to the existing “intellectual property regime,” which just seems to continually get more and more powerful. Moreover, his position suggest that their is a fight to be taken up around Fair Use, yet it is one that most people have avoided because it’s too thorny, or the legal battles would be too expensive, or it’s just not “expedient at this juncture.” Well, I can’t think of a time when we need it more!

Do you remember the Library of Congress exemption “allowing film and media studies professors to create digital clips from legally-obtained DVDs housed in college and university libraries” as long as they are used in the classroom or on electronic courseware sites and “restricted to matriculators and measures are taken to thwart copying and downloading of the material.” And while all of this seems kind of quaint now that YouTube has exploded since 2005/2006 when this exemption was made, it still highlights the very real limitations upon Film and Media Studies faculty to quote the medium they inhabit and depend upon for discussion and analysis. Not to mention the fact that even when a faculty member takes clips from a DVD, for example, it is not entirely clear whether or not they are breaking the law given the uncertainty around the legality of breaking encryption in this instance. More importantly, how do you define a matriculated student in an open course? Does such an exemption have any relevance in the digital age of education? The whole thing is a copyright fueled legal nightmare, and has effectively made the critical analysis and discussion of our culture’s media that much more precarious and anxiety ridden. What we have is a direct competition between the Media Industry’s attempt to secure the largest percentage of profit and the academic mission to openly analyze, quote, and share media within a more nuanced argument or conceptualization of a given culture. And all of this doesn’t even speak to the numerous academic disciplines outside of Film and Media Studies that may depend on contemporary media to some large degree for examining our world.

But as I noted above, sites like YouTube kind of make this exemption seem dated, for video sharing sites provide an invaluable archive of contemporary (and not so contemporary) commercials, movies, TV shows, news, etc. And while the question of copyright is very much present there, it always seems like its someone else’s problem—it’s kinda like the masses have finally found a way to utilize the corporate strategy of creating a vanishing horizon of accountability. Almost by the simply unfathomable number of people, amount of redundancy, and pure voume of resources. All of this compounded by the anarchic ability for anyone to upload anything from anywhere goes a long way towards allowing people to depend upon a kind of transparent, but unspoken, “ungerground bazaar” for Media Studies resources (as well as every other academic discipline under the sun). And what’s more, the ability to re-contextualize clips with embed links exonerates professors and/or students from questions of copyright abuse while at the same time allowing them to frame clips within their own discursive space.

And while this doesn’t attend to the staggering limits in thinking about Fair Use in any kind of  progressive way at educational institutions throughout the US, I do think it bleeds into another point Jenkins made quite nicely when he was talking about the mistake of universities trying to build “something like YouTube.” He points out that universities are often focused on locking down and controlling content, whereas YouTube became hugely successful for the exact opposite approach –it is open to anyone, video can be embedded on other sites, and (thanks to Firefox extensions like Download Helper) the archive can be preserved despite the fact that it is ephemeral 🙂 So what would a system look like on campus that actually afforded the community the power to harness and share eductional resources on the open web? They would need the option to embed media from around the web on their own university space. They would need to be able to make their discussion and work public if they wanted to. Or, what’s more, be able to export their work to another service off-campus, and share it back from there. In other words, educational institutions need to manage the flow of digital ideas from where ever the comunity is working from rather than attempt to build and control such a space. And this ideas is at the heart of what Jenkins suggests most educational institutions have failed to recognize “university based sites are about disciplining the flow of knowledge rather than facilitating it.” And that is the problem, but there are some examples of alternatives, UMW Blogs is using WordPress Multi-User as an open, web-based publishing platform for its academic community and Bill Fitzgerald’s has modeled an impressive feed centered framework using Drupal. These spaces facilitate, rather than dictate, the incorporation of myriad resources on the web into a dynamic, syndicated environment which is premised on providing an open experience for the community as much in action as in theory and principle. It’s a space anyone on campus can add their outside feed, and have their work re-published into a course space, club space, discussion space, portfolio, etc. Point being, sometimes I think the idea of consortiums and study groups and inter-campus organizations for deciding the future of open education (not to mention building the repositories) is besides the point, and Scott Leslie’s work with Free Learning points the future out for us there, talk about sustainable! Just look at YouTube or Wikipedia or what was TextBook Torrents. Universities should be facilitating the sharing of open educational resources and fostering discussion and examination around them in a dynamic manner. I think openness (whether de jure or de facto) is already apparent on the web, and that is readily apparent for anyone familiar with sites like YouTube. The thing is we just can’t name it is such. However, if and when we start reclaiming Fair Use from the lawyers a bit more vigorously, perhaps we can start capturing dynamic interactions and streams of conversations and ideas rather than course skeletons, handouts, syllabi, and video lectures.

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4 Responses to Whither Fair Use?

  1. Chris L says:

    Pls delete that previous comment. I see Jenkins’ second post now and that completely changes things. I am talking at cross-purposes (at best). Thanks!

  2. Scott Leslie says:

    I don’t think we managed to capture the video, but a few weeks back, when we ran the “Learning Content Strategies” session, one of the highlights was Richard Smith, a prof from SFU, talking about his personal approach to hybrid teaching. One of the comments he made, that got a rise from the ‘administrators’ in the crowd, was to the effect that in addition to trying to use open content, he felt it was important to actually use copyrighted materials as well, in appropriate ways, to push back and assert the boundaries of (in our case, in Canada) “fair dealing.” He’s right, and it shouldn’t be an either/or – we should continue on with the CC/open ed approach, but all the while reclaiming *our* culture, especially people’s right to study it.

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  4. Reverend says:


    I moderated your comment, and will delete it if you like, but I think a lot of what you suggest is important and I would love to re-post it–let me know. And I really didn’t mean to suggest that UMW Blogs refuse Creative Commons or other kinds of licensing. What I was focusing on is that universities have been rather flaccid when it comes to pushing the interpretation of Fair Use, almost unilaterally falling on the conservative end of this spectrum to remain clear of the legal thicket such usage represents. UMW Blogs allows people to license their own work, their is no umbrella clause for using or not using Creative Commons, as with everything we do this is left up to the user —we just promote and talk about the possible benefits and drawbacks. And while I am not trying to pretend we are objective, I do think that UMW Blogs as a model embodies an openness of discussion and sharing that cannot really be captured in Open Courseware. It is about people sharing their work in a very de-centered and open way, by their own volition. It is insanely sustainable, and costs us nothing. The idea of getting it out there is lion’s share of the problem, the question of licensing is important but not nearly as vital to the educational problem. We have all had to resort to the legality of learning and the necessary supplication to copyright, rather than focusing on sharing ideas freely. This to me is why the idea of a publishing platform that is open, cheap, and flexible is just as important as questions about licensing and the “rules” surrounding open content. Making it easy for people to publish their work online and engage in a distributed discourse is key to them even (re)considering questions of licensing. Moreover, if we live by the letter of the law we will also die by it, and the fact that we have to re-imagine the possibilities of openness and its real limitations within the current draconian state of copyright and intellectual property puts the open content at an imediate and immense disadvantage, how can we openly discuss our culture with being cnesored and secsured? Fair Use is as much about freedom of speech as it is about Open Content, th ability to engage the culture we inhabit openly is essential to free and just society, and I think that is what is at stake. Creative Commons answer a huge question in this regard by allowing people to license their own work, but the fact that much of the cultural production is still outside of the individual’s hands opens up a huge space for thinking about and grappling with Fair Use in educational settings.


    Exactly, CC is key but it has dominated the conversation around copyright to such a degree that question of Fair Use have been downplayed and avoided to a potentially dangerous point. The very idea that it is illegal to interact with and re-purpose the very materials that frame a given culture openly for educational purposes suggests the extremes to which copyright has controlled the conversation, and in many ways is in the business of cultural hegemony both at home and abroad. The dictates of any given law to suppress discussion about a medium within that medium is oppression, and the fact that so many of us have internalized this process and police ourselves to the nth degree (not feeling comfortable unless we have gotten permission and attribution) highlights the dangers of making licensing the preeminent discussion of copyright in education. People should be free to interact an openly publish the products of their cultural moment in order to engage in a discussion beyond that controlled by the purveyors of culture. And this equation may change i the future, and the questions surrounding who owns what, and who controls re-use may change in 50 years if and when much of our culture has been licensed for attribution, but until (or if) this happens their are still enormous pieces of our culture that are off-limits for contextualized reproduction to foster critique, analysis, and questioning—all of which remain a the heart of educational institutions, or at least good ones 😉

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