Pushing Back Against Legal Threats by Putting Fair Use Forward

A dynamic professorial duo leaps to the defense of beleaguered scholars

Jay Premack for The Chronicle

Peter Jaszi and Patricia Aufderheide say scholars have misperceptions about copyright law and can use materials without breaking the law. Their new book, "Reclaiming Fair Use," tells how.
May 29, 2011

A rarely discussed form of self-censorship happens routinely on college campuses. Professors and graduate students choose not to tackle academic arguments that involve music, movies, or other forms of popular culture. They worry that including relevant clips in their work means the hassle and expense of getting copyright permission for each snippet.

But in many cases, scholars can use this material without breaking the law, even if they never ask the rights holders and even if they hope to profit from their resulting academic books.

That's the argument made by two scholars at American University—Patricia Aufderheide, a film-studies professor, and Peter Jaszi, a law professor—in a new book called Reclaiming Fair Use: How to Put Balance Back in Copyright.

"People are choosing not to create," says Ms. Aufderheide. "The general feeling is, You never want to do anything that deals with popular movies or music, because you can't clear those."

The book, due out this summer from the University of Chicago Press, is the latest step in the duo's fight against what they call misperceptions about the fair-use rules of U.S. copyright law. While some copyright reformers lobby Congress for new laws, and others fight existing laws, Ms. Aufderheide and Mr. Jaszi have focused on educating scholars and artists about rights they already have but may not know about. The professors' guidelines note that risk is often overstated, and that the law allows more latitude than people often think.

"The work they have been doing has injected a tremendous amount of clarity and predictability into fair use," says Siva Vaidhyanathan, a professor of media studies at the University of Virginia and author of Copyrights and Copywrongs. "They've done more to improve how copyright works in this country than just about anybody else."

Some copyright owners argue that broad guidelines can lead the uninitiated into acts that could break the law and risk expensive penalties. But Ms. Aufderheide and Mr. Jaszi say this is just the kind of play on fear they want to inoculate against.

Fair Use for Dummies

The two professors are an unlikely team. Ms. Aufderheide spent years as a film critic and has no formal legal training. Mr. Jaszi is a longtime legal scholar who spent the early years of his career writing theoretical academic articles. The two met at a conference soon after Ms. Aufderheide wrote a book attempting to explain the 1996 Telecommunications Act to a wide audience. Both were interested in fair use, which allows limited use of copyrighted material without permission from its creators for the purpose of cultural criticism, teaching, or scholarship. Together they began researching the impact of the principle on documentary filmmakers, and heard stories of projects that never went forward, out of concerns about copyright. Based on what they learned, they developed their first guide: "Documentary Filmmakers' Statement of Best Practices in Fair Use."

Companies that insure commercial documentaries soon began accepting its arguments. "There's so little risk that an insurer is willing to take on that risk without charging you more for it," says Ms. Aufderheide.

Heartened by that success, the two scholars started developing similar guidelines for other types of creative work. They've produced six guides so far, including one for poetry, one for online video, and one for media-literacy education. All are available free on the Web site of the Center for Social Media, a group set up by Ms. Aufderheide at American University.

Along the way, the two scholars have refined a process for developing such guidelines—a method they describe in detail in their new book in hopes that other organizations might decide to make their own "code of best practice" for fair use.

"It's a completely DIY approach," says Mr. Jaszi. "It's something that these communities can do themselves."

And the scholars still consult with groups to help them make the guides. Their latest project: working with the Association of Research Libraries to develop a fair-use guide for academic librarians, with the help of a three-year, $392,000 grant from the Andrew W. Mellon Foundation.

The scholars start the process by conducting long, carefully structured interviews with leaders in the field. Step 2 involves a focus group to discuss how practitioners interpret and apply fair use.

For the librarians, that sometimes involved one participant quietly describing how his library does things—as if worried that the practice might not be legal—and then realizing that the rest of the participants do the same thing, and that the practice is legal. "Literally, voices go from a whisper to a jovial shout," says Brandon Butler, director of public-policy initiatives for the library association. "The community doesn't know its own wisdom in a lot of these cases."

A big part of those discussions involved correcting misperceptions, many of them caused by prior fair-use guidelines, Mr. Butler says. Some guides, for instance, attempted to specify limits on how many words of a text or minutes of a film could be reproduced legally. The actual law has no fixed amounts, meaning that fair use depends on the context and is highly subjective.

The library group is now turning to writing up the best practices, which are presented as common scenarios rather than absolute rules. The goal is to communicate the spirit of the law so people can apply it to their situations.

Many groups assume that they should bring in someone from the publishing community to help. But Ms. Aufderheide says that defeats the purpose, since many publishers would rather people license each use of copyrighted material, for a fee, even when they aren't legally obliged to, she says. Fair use does not call for prior permission.

Before the library group's guide is released this year, a team of lawyers will check it over—what Mr. Jaszi describes as a "murderer's row of legal reviewers." The last thing the two scholars want is for anyone who follows their advice to wind up losing a legal challenge. "We're lawyered up," he says.

The 'Specter of Litigation'

Sandra Aistars, executive director of the Copyright Alliance, a group representing copyright holders, says her organization does not recommend Mr. Jaszi and Ms. Aufderheide's work or any guidelines, saying the doctrine is too hard to sum up briefly.

"I would hate to see something like this lead a normal consumer to have a false sense of security over something and push the envelope into something that gets them into trouble," she says.

That view drew an emotional response from Ms. Aufderheide: "When people talk about the risk, it makes me think, Why are you scaring my friends?"

People deal with fuzzy laws all the time, she argues. "Obscenity is impossible to define, and yet people have some idea of when they're committing an obscenity or not."

"You could walk through your life being haunted by the specter of litigation in every aspect of it. But people don't usually do this in their other free-speech rights."