31 July 2012

Rebalancing Copyright

The concise 'Copyright in the Participatory and Online Video Environment' by Patricia Aufderheide, co-author with Peter Jaszi of Reclaiming Fair Use: How to put balance back in Copyright (University of Chicago Press, 2011), argues that
the nature of copyright exceptions to the limited monopoly rights of copyright holders as well as why a grasp of copyright exceptions is central to the evolution of participatory and online video environments. It also explains the historical underpinnings of unbalanced copyright policy, and how challenging attempts to rebalance it have been. In that light, the success of practice-related rebalancing efforts has been remarkable. These rebalancing efforts are of particular interest to participatory and online video creators and users, who can both make use of their successes and translate their techniques into the copyright regimes of their own national environments. Finally it argues that such participation in rebalancing copyright will be critical to the evolution of participatory and online video culture. 
Aufderheide concludes
he U.S. experience is valuable to international creators. In practical terms, since the U.S. has the harshest penalties for infringement, clearing the fair use bar is usually good enough for many commercial distributors internationally. The logic of fair use is entirely different from the exceptions of other nations. The core principle of freedom of expression applies to all, however, and many of the same options are available to users, even though for different legal reasons. 
The U.S. example has already proved inspirational. As a result of the achievements of U.S. documentary filmmakers, filmmakers under other copyright regimes in other countries have also explored, sometimes with scholarly help, the opportunities to make the most of exceptions under their law. South African filmmakers have probed the possibilities of more aggressively employing right of quotation, especially in the effort to document the history of apartheid (Flynn & Jaszi, nd. [2009]). Norwegian filmmakers have also discovered that right of quotation appears to be a far more ample exception than they have heretofore exploited (Larsen & Nærland, 2010). 
These policy victories and successes in expanding creative practice demonstrate that creators who are aware of their rights can take creative action, and also take political and policy action to defend them. They can both innovate in their field and support innovative policy. They also provide a small but sturdy challenge to the overreach of large copyright holding stakeholders, who typically discount the value of copyright exceptions. Nonetheless, such actions remain demonstration cases in a much larger contest between those who hope to expand the monopoly rights of owners and those who want to increase the flexibility for use of existing culture in the creation of new culture Makers of participatory and online video, and educators who teach and support them, currently participate willy-nilly in the contest between those who wish to unbalance copyright and those who are struggling to rebalance it. They are examples of innovators, and they participate in an undefined, emergent culture, which cannot develop and grow without access to copyright exceptions. In order to explore their environment and create new culture, these creators have been forced to confront the imbalance of copyright policy. 
Creators in this participatory, online environment need to understand and use the relevant exceptions to limited monopoly rights under copyright. Doing so can not only permit them creative range of action, but can enable them to exercise and defend their free speech rights. Users who are aware of their rights and see the way those rights change what they can do can also be active participants in shaping their copyright policy. 
Users should be active participants in that discussion, which is lively and ongoing. Copyright policy will adapt to a more participatory creation environment, but the least adaptive of the 20th century business forces driven by monopoly rights in copyright will continue to be powerful voices. Therefore, work in legal literacy will be be important. This work, particularly making people aware of their free speech rights, must be done within the legal framework of each nation. While legal clinics, legal scholars, and pro bono lawyers can help, ultimately teachers of content, critical thinking and media literacy need to co-own the agenda of legal literacy. Legal experts can assert what the limits and terms of current law are, but this is merely the skin of practice. As has been proven by the vast changes in fair use practice in the U.S., practice creates practice; use changes the contours of law. 
We can expect to see attempts on the part of large copyright holders to influence copyright policy in ways that further unbalance it. Some examples include: extending copyright terms even further; developing legislation that cripples Internet transparency in the name of limiting “piracy” (which usually means P2P downloading); demanding treaty terms that “harmonize” across national boundaries to further unbalance copyright. Members of an emergent, participatory digital culture have every reason to need a balanced copyright policy, and also to argue to policymakers that such rebalancing is in the national interest.
'Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching' by Kenneth Crews in 22 Fordham Intellectual Property, Media & Entertainment Law Journal (2012) 795 looks at the 'Bridgeman Problem', commenting -
Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article explores the extent to which museums have strained the limits of copyright claims and indeed have restructured concepts of ownership and control in ways that curtail the availability and use of art images far beyond anything that may be grounded in the law. 
This article examines the relevant copyright law applicable to the making and use of reproductions of art images, and it identifies the challenging pressures that museums face as they strive to make policies in the context of law but that also serve the multiple competing interests coming to bear on officials and decision makers inside museums. The article analyzes selected policies from major museums and provides an original construct of forms of “overreaching” that often appear in written standards offered by museums for the use of images. The analysis of policies also demonstrates that museums have choices in the shaping of institutional policies, and that breaking away from familiar policy terms can sometimes better serve institutional and public interests.