Week 7 – About “Fair Use” by Patricia Aufderheide and Peter Jaszi

In my last post about Free Ride by Robert Levine (2011), I ended up encouraging the use of education as a possible solution to reduce the spoil caused by piracy on content protected by intellectual property rights.  Imagine my surprise when I read Fair Use, by Patricia Aufderheide and Peter Jaszi, a manual that promotes both self-education and exercise of fair use rights. It has been a very pleasant reading mainly due to the educational encouragement that the work exudes. Once again, I will try to focus on three aspects that caught my eye: fair use in an international context, the individuality of each case in fair use, and the necessary distance one should take from the “politics of the victim” (about fair use or any other matter.)

First, I was able to learn more from an aspect of the US copyright law that I have not been very familiar with until this term, given that in my home country we do not have such thing as fair use. To the best of my knowledge, the authors are right when they refer to similar international practices in non-Anglo European countries to use copyrighted material (Chapter 10, pp. 149-151.) I can assure you that a high school teacher in Spain is safe using copyrighted content in the classroom, as long as there is noncommercial intention and citations are provided. It is easy to understand how a different worldwide legislation about intellectual property rights can bring a headache to copyright holders and lawmakers (Chapter 10, p. 152) and to people who travel or move abroad. A similar concern was shared by Levine in Free Ride when he suggests to establish common copyright rules for digital content on the Internet (Levine, 2011, p. 247), although Aufderheide and Jaszi would rather advocate for educated citizens in their rights as best solution (Chapter 10, p. 154.)

As I mentioned, their passion for education is patent throughout their work and is especially notable when they insist in the need to analyze each case of fair use individually with a set of three questions: purpose, proportionality, and relevance in the field (Chapter 2, p. 24). This brings me to the second topic I wanted to comment on. Fair Use contains several references to perform a reflective study of each situation where fair use is claimed to do creative work from copyrighted resources (Chapter 2, p. 24; Chapter 5, p. 78; or Chapter 10, p.136.) There is even a whole section where answers are given (Appendix E, pp. 177-185) to an excellent collection of particular cases offered along the reading in the “Fair Use: You Be the Judge” text boxes. And all of them require the same individual approach because generalizations, although necessary to grasp the big picture, are useless without reflection as they also demonstrate with the “Myth and Realities about Fair Use” section (Appendix E, pp. 173-176). This is possibly one of our most difficult missions as educators: teach our students to be reflective thinkers, and this topic of intellectual property rights is a great opportunity to practice with our students.

Finally, another excellent source for a teachable moment comes with their commentary about the politics of the victim and the risks they represent (Chapter 4, p. 68-69) Today is very frequent to find, especially in politics and journalism, examples of people who try to capitalize on a victims cause and label anything against it as wrong (Chapter 4, p. 69). The authors show the early opinions of Lawrence Lessig for his “all or nothing” position in free culture (Chapter 4, p. 65) to illustrate the black-hat vs. white-hat paradigm in fair use, although they admit he has moved lately to a more moderated position. Our young students are usually very emotional and this kind of manipulations can be very effective. Therefore, here we have a further educational opportunity to discuss with them these situations that lead to “A is good, B is bad” when a more particular analysis might guide us to a more balanced opinion, like happened with Lessig after 2010 (Chapter 4, p.66.)

I would like to conclude expressing my reinforced commitment with education as a driving force to overcome difficulties. Issues like dealing with intellectual property rights and fair use require creative solutions and knowledgeable users, which is something new generations will have to face. Their success will depend on their previous, present, and future education.

 

PS: Yesterday, I run into an idea Nintendo came up with to profit from remixers who post videos in YouTube. We were discussing this on our last post about Free Ride by Robert Levine. The article was published yesterday, May 16, 2013, by BBC News with the title “Nintendo to profit from user videos posted to YouTube” (no author provided):

http://www.bbc.co.uk/news/technology-22552756

 

References:

Aufderheide, P., & Jaszi, P. (2011). Reclaiming Fair Use. Chicago: The University of Chicago Press.

BBC News (May 16, 2013). Nintendo to profit from user videos posted to YouTube. Retrieved from: http://www.bbc.co.uk/news/technology-22552756

Levine, R. (2011). Free Ride. New York: Anchor Books.

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1 Comment

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One response to “Week 7 – About “Fair Use” by Patricia Aufderheide and Peter Jaszi

  1. Javier, I really liked your point about the risk of black and white thinking on young minds. You are right, they are very impressionable and ironically it reminds me of Lessig’s book. I’m guessing Remix was a post extremist Lessig, where he made the argument about copyright ‘criminalizing our youth’. Positive and relevant use of copyright for today’s learners can help to better understand the issues surrounding copyright rather than jump on the copyright rebellion bandwagon. I had a similar realization in my web 2.o class where we examined Wikis. My mom being an older educator, had strong opinons against wikipedia due to student’s frivolous use of it as a direct ‘source’. I then admitted to believing it was source when I was in school and how I wish I would have even known what it was. This lead into a conversation about understanding tools and resources that are becoming inevitable parts of today’s culture. Like you said, “Their success will depend on their previous, present, and future education.” I believe areas such as copyright, wikis, etc. need to be part of ‘education’ today.

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