2.2 Notes: Recovering fair use (Collins 2008)

This article looks at how the  blending of “media consumption with media production to create new works” (Collins 2008) and  subsequent internet mediated distribution is challenging current copyright laws in the US. The article focuses on “Fair Use”  - a doctrine that is part of the United States Copyright Act 1976 which allows for a certain amount of flexibility when using copyrighted material if it is deemed “fair”. This doctrine, Collins states, is being “systematically eroded” by harshly enforced copyright legislation -  and is something that Collins would like to see re-instated to ensure our cultural and creative expression is not stifled.

Collins begins by pointing out that copyright and distribution of text have always walked hand in hand - with the originating law being granted in order to allow for the exchange of money in return for access and use of texts. It was created in the interest of society, in the interest of learning and education, and to promote creativity and new thought by exposing people to new ideas through books (Collins 2008). 

The system of using another's work without permission but ensuring the originating source is always quoted or cited is a system still used today in writing, and I tend to wonder why it has not evolved to include other forms of media. Should I choose to write a book and publish a string words written by another author I can do so as long as its referenced. Should I choose to make song, and use a line of melody from another song it is illegal. As an example - take a look at the band Men at Work - sued for using a line of melody from "kookaburra sits in the old gum tree". I wonder if they sang the reference would they have avoided a court case? I also wonder is free speech limited now only to the written word? 

.... Hang on I haven't reference the title of that bird song! I'm probably looking down the barrel of a law suit right now. Here I am ... playing with fire - much like that other, less fortunate Kookaburra....

The article goes on to give two examples of when "fair use" has been successfully used to defend  people in court who have used songs without the copyright owners permission. One  - where a mother posted a video on YouTube of her baby dancing to a song by Prince, and the other where 15 seconds of a John Lennon song was used in a documentary. While both cases were acquitted I tend to wonder if fair use is the way forward - as it is a court appointed process that relies on the everyday person fighting against large media institutions who have greater financial resources, and therefore greater power in the courtroom. Court cases cost money, and the average person may find it easier to take down their content rather than trying to fight for their right to display it. The playing field here is not level, despite the laws created to make it so.

Australian copyright law does not contain a fair use clause but does have “fair dealing” exceptions which allow copyrighted material to be used for “research or study, criticism or review, parody or satire, reporting news, or professional advice by a lawyer, patent attorney or trade marks attorney”(Fair Dealing  2008). Yet even if a work is used for educational purposes it is still up to the courts to decide if the use was fair and it is this that worries me. What constitutes as a fair learning experience? Will work created in an effort to self educate be seen as any more or less fair than works created when attending an established education institution? Is one form of learning more legal than the other?

The idea of fair use and copyright may be a good thing to base my remediation project on as I am not sure that copyright law works in the best interest of the everyday person. If anything it seems copyright has the ability to make criminals out of just about everybody. Kookaburras included.

Collins, S. 2008. Recovering Fair Use. M/C Journal 11 (6). http://lms.curtin.edu.au/webapps/portal/frameset.jsp?tab_id=_2_1&url=%2fwebapps%2fblackboard%2fexecute%2flauncher%3ftype%3dCourse%26id%3d_43148_1%26url%3d (accessed 28/9/11).

Fair Dealing. 2008. Australian Copyright Council Information Sheet G079v05: 6. http://www.copyright.org.au/find-an-answer/ (accessed 28/9/11).