Anthony Falzone from Standford’s Fair Use Project gave a superb lecture on the impact of fair use on scholarship and free speech at the University of North Carolina, Chapel Hill on Tuesday. I am trying to contain my disappointment over the need to cancel his lecture at Duke scheduled for the day before due to a freak March snowstorm. I hope that I will soon be able to point Duke folks who did not get to hear Tony, as well as interested listeners from elsewhere, to a podcast of the lecture. In the meantime, I want to emphasize two aspects of Tony’s talk, one from the very beginning and one from the very end ( but note that the middle was fascinating too).
In setting the context for his discussion of fair use, Falzone made the fairly common point that copyright is a monopoly, which is something we usually disapprove of in the US as economically and socially inefficient and harmful. Jamie Boyle, in his book on The Public Domain, discusses the reluctance felt by Jefferson and Madison over copyright for this very reason. But Falzone went a step further to stress that copyright is a monopoly over speech. For me this fell into the category of things I knew but had not fully considered; Tony helped my really think about what it means to give someone a monopoly over expression in a nation where free expression is the first guarantee in our Bill of Rights.
The message I came away with is that fair use is not really primarily about who has to pay whom, when and how much. Rather, fair use is a safety valve that protects one of our most fundamental values. Do we really want a copyright owner, for example, suppressing an expression of political speech such as the Barack Obama HOPE poster or the Ben Stein movie Expelled? From this perspective, fair use is a fundamental and absolutely necessary part of the fundamental structure of copyright in the context of American values. It is an incentive for creative expression just as much as the exclusive rights themselves are. Without fair use, I asked myself, would copyright’s monopoly be unconstitutional?
At the very end of his lecture, Falzone returned to this emphasis to ask his audience to get involved. Specifically, he remind us that our practices, as librarians and academics, help shape the norms about copyright use. And courts do consider these norms within various industries and user groups as they rule on copyright matters. This is why statements of best practices are so important. Falzone ended his talk by asking us to exercise fair use, especially those transformative uses that are becoming more common in a digital age and which courts tend to favor when deciding fair use cases. These transformative uses (parody, criticism and comment, as well as all kinds of remixes and mash-ups) are precisely where new creative expression is born; they are wonderful opportunities for teaching and learning. Here more clearly than anywhere else, fair use serves both the mission of education and the fundamental purpose of copyright law to support new creation. The message is not that “anything goes,” but that in higher education especially we must not allow the “chilling effects” of fear give us cold feet about creative and socially beneficial fair uses.