When it comes to copyright, the discussion today invariably focuses on piracy. For today’s large copyright-based industries, almost any unauthorized use of their content is considered stealing. But the real question may be what such a restrictive reading of copyright steals from the public. In Reclaiming Fair Use: How to Put Balance Back in Copyright (Univ. of Chicago, 2011) authors Patricia Aufderheide and Peter Jaszi look at the impact of today’s copyright policies on creativity and argue that fair use—that long-embedded if often misunderstood core principle of copyright—can help creators cut through the static of today’s confusing, contentious copyright environment.

The book, brimming with highly readable, real world examples, is a true interdisciplinary effort. It grew out of discussions between the two American University professors—Aufderheide, who works with documentary filmmakers, and Jazsi, a highly regarded law professor—following a conference on copyright issues facing creators.

“One of the interesting things we discussed was how misunderstanding about copyright constitutes a real constriction of creativity,” Aufderheide tells PW. “Because of my 30-year relationship with the documentary filmmaker community, I was able to get people to speak frankly about the problems they’ve had. The filmmakers themselves ended up being surprised at the level of self-censorship they were employing. We’d ask them about projects that may have been hampered or forestalled because of not being able to license things, and they’d say, ‘Oh, we don’t have those problems, we know what we can’t do, we know the law.’ But, actually, a lot of the things they talked about were just interpretations of the law, usually by gatekeepers. That kind of unlocked the issue for us: how do you measure something that’s not there? How do you measure imagination foregone, when people don’t even think of doing something because they think they can’t do it under copyright law?”

In today’s wired world, more and more people have had some kind of copyright clash—whether being blocked by YouTube from uploading a video because of a copyrighted song; a cease-and-desist order over downloaded music; perhaps a librarian grappling with e-reserves, or teachers looking for guidance on classroom use. Fair use, the authors argue, can help.

“In a world where the public domain has shrunk drastically,” they write, “[fair use] creates a highly valuable, contextually defined, floating public domain.” The assertion of fair use is part of a larger project: to “reclaim the full meaning of copyright policy, not merely protection for owners, but the nurturing of creativity, learning, and expression.” And with new legislation, like SOPA, and new technological regimes emerging to limit access to copyrighted material, the book could not be more timely.

“I think a goal of this book—and this should resonate with PW’s audience—is to help to make fair use as practically available to all kinds of creators as it has traditionally been to the publishing industry,” Jaszi says. “The American publishing industry has been the foremost champion of the idea that has come to be understood as transformative fair use—that if you take appropriate amounts of protected content and add value to it in some significant way, you’re not an infringer. You are, in fact, exactly the kind of user our copyright seeks to encourage.”

PW caught up with Aufderheide and Jaszi to talk about copyright, fair use, and the challenges facing creators and educators in America.

With the advent of the Internet, it sure feels like the copyright discussion has become more and more tilted toward “piracy.” Has that had an effect on how people perceive fair use?

Peter Jaszi: Yes, and it’s a problem. The great irony is that all these industry campaigns against piracy or downloading or file sharing have not been successful in addressing the problems they are meant to address, and they have done enormous collateral damage to creators. Whatever one thinks of the record industry’s campaign against file sharing, for example, it’s very clear to me that threatening and then bringing lawsuits against individual downloaders has had an enormous chilling effect on creative communities.

Pat Aufderheide: To paraphrase something Peter once said, fair use has been kind of an innocent bystander in the media industry’s attempt to control downloading. The big message from the media is that downloading or copying or using material without permission is bad—that it’s stealing or plagiarism. And not only has all of that publicity and intimidation chilled users from making fair uses, it has also convinced some copyright owners that they’re in total, complete control of their material, and that anyone who uses it without authorization is a thief and a bad person. But that is not the law. And because we’ve developed this moralized language around copyright ownership, we have also now created a language of immorality around using unlicensed copyrighted material. This is very poisonous, and you can see people’s misunderstandings when you start to work with them on these questions. People have an almost fearful approach: they don’t want to be seen as bad people—they don’t want to cheat or steal or be called a pirate.

Peter Jaszi: A point I would add, and it’s a point we dwell on in the book, is that when we talked about copyright issues with creators, there were some very important things to creators that actually aren’t covered in U.S. copyright law. For example, we found that creators are often as concerned with getting proper attribution as they are about making sure that every use of their material has a price or comes with permission, and that’s a subject U.S. copyright law is really silent on, even though it’s at the heart of the creative community’s concerns. It’s not all about money. Many creators see the value of a lively fair use doctrine, but they want that to include an emphasis on attribution.

In the digital age, “free” uses are often defended as fair uses, and I wonder if the shoulders of fair use are broad enough to carry that load. For example, Google claimed fair use on an unprecedented, industrial scale when it scanned millions of library books and began to create new products. Does that kind of corporate invocation change how people think about fair use?

Peter Jaszi: No, I don’t think so. I think that the argument about whether some or all of Google’s book scans are fair use is an “inside baseball” issue, and not an issue that most people have actually thought too much about. And to the credit of the litigants on both sides of the issue, they have avoided making hyperbolic, categorical statements about the fair use issue here, so, no, I don’t see this as a game changer in terms of public attitudes toward fair use.

Pat Aufderheide: In general, however, a lot of people we’ve talked to do perceive fair use as a kind of “Band-Aid” solution, you know this little thing that’s incapable of addressing imbalance in copyright. But to use another phrase I learned from Peter, fair use is like a muscle: the more you use it, the bigger it gets. If we treat fair use as insignificant, insecure, undependable, and we never use it, then it fails to become part of our culture in practice, even though it’s the law. And to the extent that we use it, it becomes remarkably vigorous.

Peter Jaszi: That’s right, but if I can go back to your initial question for a moment, you suggest that what has made fair use really important, and perhaps challenged, is the digital condition. I certainly can’t disagree with that. But there are other developments that have little to do with technology that have made fair use more important than ever. I’ll just point out two—one is copyright period extensions, and another is the copyright penalty structure.

Over my career, the grip of copyright has been progressively tightened by Congress, which has been very responsive to the needs of commercial copyright owners, but not necessarily to the needs of creators. When I started in this business 40 years ago, most copyrights ended after 28 years, because most copyrights were not renewed. So whether you were a poet, a scholar, or an artist, you always had a huge body of certifiably public domain material to work with. That meant reliance on fair use was, at a practical level, less important.

But the creative industries have been very successful over the past few decades in getting Congress to extend terms and to up the penalties for infringement. Copyright protection can now last for many generations, and now, if you get a cease-and-desist letter about your little online video from a lawyer representing a big media company, it will say that you could be liable for up to $150,000 per infringement. Those two things have had a huge, huge chilling effect and created a lot of pressure in the system. At the same time, the very same judiciary that dutifully upholds these new copyright laws as they come up, also sees the value of fair use as a way to relieve that pressure.

Peter, you mentioned publishers’ long history of supporting fair use, but in a closely watched case, three academic publishers have sued Georgia State University over fair use in the educational realm [now awaiting a verdict in federal court in Atlanta]. In that case, the publishers have proposed a remedy that would have the court issue strict usage guidelines and would also compel GSU to somehow ensure the compliance of its individual faculty members. Wouldn’t that be a serious reining in of fair use—and, as you say, at the hands of its traditional defenders?

Peter Jaszi: Oh, no question. My understanding of the publishers’ position in the GSU case is that they want the court to issue an injunction that sets a limit, like 10% of this, or 1,000 words of that, and so forth. But we have a long history of failure with numerically oriented fair use guidelines, because there is no way to tell a teacher interested in generating classroom discussion of video material, for example, that they can’t exceed 45 seconds of something without securing permission, because there are always going to be situations in which the lesson a professor is teaching justifies using more.

I think we can all agree that guidelines and shared understandings are good. But we have yet to discover anybody in the field who agrees on a precise quantification of those understandings. If that’s the result in the GSU case, it would be unfortunate. And, as you suggest, a remedy that would mandate a reporting function is also problematic. If fair use decision making is bureaucratized, especially if it’s bureaucratized with reference to numerically calibrated limits, the result will be a tremendous chill on legitimate fair use in the university space, because institutions will seek to limit their liability by imposing stricter copyright discipline on individuals than the law actually requires. None of us can afford that.

In a PW Soapbox essay, AAP’s president, Tom Allen, said the publishers’ proposed injunction was a good thing because it would “simplify the task of making fair use determinations” for faculty. Allen may be right, but is that because the injunction would eliminate so many fair uses?

Peter Jaszi: Exactly. We often say that education is at the heart of fair use, and that’s because education is a fundamentally transformational practice. That needs to be recognized as a starting place here, and it disappoints me that parties to the Georgia State case apparently haven’t been able to get together on that starting point.

Pat Aufderheide: It’s interesting, too, because so many people we talk to in the field, a lot of them educators, will say they need a clear, simple, bright-line rule. But it’s worth pointing out that we don’t do this around other free speech rights. There are lots of decisions people are comfortable making on a case-by-case judgment without bright-line rules—obscenity, indecency, libel, slander. These are all things people decide intuitively on a daily basis, even though there are very strong legal penalties for making a mistake. Yet fair use, because of this very sort of moralized discussion, is something that causes people anxiety. People have also told us, for example, that they need to give their subordinates a clear idea of how to stay out of trouble, but, to me, that is saying that you can’t trust people to use their own judgment, or that fair use is too difficult for people to understand.

In fact, that’s right out of the plaintiff’s playbook in the GSU case—publishers argued that complex fair use decisions are being offloaded onto professors who, even though they have advanced degrees, can’t understand how to apply copyright law with only broad guidelines to help them.

Peter Jaszi: Right, so the industry says it has to make it easy for you, and, in two ways. First, by reducing fair use to specific numbers that even you idiot professors can understand. And then, by monitoring those professors to make sure they actually implement fair use the way publishers want them to. But that’s not the law, and it’s not the spirit of fair use.

Pat Aufderheide: And it’s not the spirit of freedom of expression, and it’s certainly not the notion of American liberty that people have about their rights in general.

As publishers and others sell their products digitally, should we be concerned that licenses might make fair use a nonfactor, either by charging for and authorizing such use within the license agreement or by prohibiting the practice altogether? Is fair use threatened in a licensed-access digital world?

Peter Jaszi: That’s a good point, and a big issue. The Supreme Court hasn’t addressed this, but in all honesty, the lower court opinions on this issue so far suggest that if a vendor and a purchaser negotiate license terms that constrain the exercise of fair use, those terms are binding. What does that mean? It means that purchasers have to be very, very careful in their license negotiations. There are plenty of examples of libraries and institutions that have successfully negotiated licenses that keep all or part of the fair use doctrine alive, even with respect to purchased or subscribed-to digital databases. But if you don’t do that, you get what you negotiate.

Pat Aufderheide: This is one reason why I feel a tremendous sense of urgency about this book. People have to know that they have rights. They have to value these rights. They have to protect these rights, and recognize what they may be signing away in licenses. And not only in license agreements at the library, but whenever people get on Web sites and click on terms-of-service agreements or agree without protest to the kinds of limitations that providers like YouTube put on users who may be identified as wrongly using copyrighted material, even when the use is fair use. If people just go along, if they don’t even know their rights, that’s dangerous. And the timing of this book is critical because this is a moment of transition. We are moving to a system where licenses and technical means can override one’s rights. But it is still possible to decide that that’s a bad idea and to demand a different way of doing things.

When it comes to technical means, which many in the creative industries are now pressuring ISPs to adopt to police their networks, can these things ever effectively replace our tradition of fair use?

Peter Jaszi: Clearly, no. There have been a few efforts over the years to try to create intelligent systems that might make some contribution to fair use analysis, but they’ve all been bombs. The only way one could possibly make something like this work, and I say this very tentatively, because I don’t know whether it could actually work, would be to build in a rapid response capability by which someone who is blocked or gets a letter can, without exposing themselves to further risk or litigation, request that human beings take a look at the use, because that is core to doing the kinds of things that we not only are permitted to do in our copyright system but are encouraged to do.

In the book, you write that we are now “a remix culture,” a nation of “makers and creators.” Do you sense that this emerging, growing remix culture bodes well for how future generations will understand and protect our copyright traditions?

Peter Jaszi: Yes, but Pat is right that we are at a very, very urgent moment. I think there are two ways this story might unfurl. One is that as we recognize copyright affects us all, we’ll exercise and fight for the rights we have. But if we don’t do that, and this idea of pay-per-use access to culture becomes completely ubiquitous, then 10 years from now, I’m afraid the situation may be irrecoverable.

Pat Aufderheide: Right now, I think the prevailing idea is still that young people think everything is free and they just do whatever they want. But that’s not our experience. Peter and I conducted a study with students who were producing remixes, and we discovered that young people are very, very concerned about getting into copyright trouble. So, while they are making lots of great stuff, they are also self-constraining their creativity. I think it is entirely possible this little moment in time could end up looking like the Russian revolution, where, at the beginning, artists flourished and a lot of great stuff was made, and then, it was Stalin and social realism. Obviously, I’m not drawing a direct parallel. I’m just saying there have been wonderful, creative moments in history that have fallen victim to overly restrictive regimes. And if people aren’t able to see what other people are doing, and then build upon it, then creativity can’t grow, and we all suffer.