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Copyright, Fair Use, and the Cultural Commons

The next session here at MiT5 is another plenary, on Copyright, Fair Use and the Cultural Commons. It is introduced by William Uricchio, who begins by noting the historical development of the concept of copyright, and the initial argument for copyright as promoting the rights of authors but also ensuring public access to knowledge after the termination of the initial 14-year period of copyright protection. Today, of course, copyright has been almost infinitely extended, paradoxically at a time when the circulation of information has become faster than ever before.

The first speaker in the panel itself is Wendy Gordon from Boston University, who also notes that copyright came into being in the U.S. as a set of liberties for the public as well as a set of rights for the content creator; amongst these liberties was the right to fair use, for example. However, 'fair use' is by no means unproblematic, and has been described by Larry Lessig also as 'the right to hire a lawyer'. Recent industry practice has had a chilling effect on the public's use of 'fair use' provisions - it has impacted not only on violations of copyright, but also on perfectly legitimate, fair uses of copyrighted content. Such chilling effects must be overcome through directly targetted actions - ultimately, for example, through alternative copyright licences, but also through the development of 'fair use' toolkits, the forming of practitioner alliances, and the creation of activist groups arguing in favour of fair use provisions. A recent project developing guidelines for "Best Practicees in Fair Use", and an accompanying film documentary on fair use approaches in documentary filmmaking, some of which we're seeing now, is one example of such action.

Gordon Quinn of Kartemquin Films is the next panellist, and begins by noting again the chilling effects of a very risk-averse copyright clearance culture, effects which have increased over recent years and have led to a great deal of self-censorship on behalf of documentary filmmakers. The new Best Practices document provides a great sense of re-empowerment for documentary filmmakers once again in this context, but Gordon also notes that fair use cuts both ways for filmmakers - their material is also being re-used, of course, and here the filmmakers remain interested still in having some control of how their material is being re-used...

Hal Abelson, one of the driving forces behind MIT's OpenCourseWare project, is the next speaker. He notes that the chilling effects around questions of fair use are seen even more acutely in the academic environment; here, even clearly fair use-permitted uses are frequently not pursued due to the threat of potential legal action for 'copyright infringement' (and Hal is running through a number of outrageous examples of how academia's ability to conduct its work has been disrupted by copyright holders). This has also been a continuous issue for MIT's OpenCourseWare project, of course - rather than relying on a fair use argument, OCW has had to re-create potentially problematic content (graphs, tables, etc.) in a large number of cases.

Pat Aufderheide from American University is the last panellist. She suggests that 'practice makes practice' - that there is a great need to embrace new and more proactive approaches defending and extending fair use, which may then set the standard for fair use approaches into the future. Such issues are no longer limited to a select number of content creators - instead, in an environment of widespread produsage they are now crucially linked to questions of free speech. People involved in such participatory culture now have the potential to become a community of practice - and this is also a question of developing the approproate media literacies in a digital, participatory, remix environment.

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