Fair Use Gone Viral: Predicting the Future of Copyright

Copyright, Legislation, Policies

ALA hosted a webinar featuring Kenneth Crews called “Fair Use Gone Viral: Predicting the Future of Copyright”. The webinar recording is available. I learned about it through the Digitization 101 blog by Jill Hurst-Wahl. Hurst-Wahl attended the webinar and shared her notes in a blogpost.

Crews is an American copyright scholar and librarian. He plugs his new book Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (4th Edition) as a resource for those deeply interested in this topic. He opens the webinar by painting our current moment as “upside down”. And yet — copyright provisions are still being made by Congress. 

The CASE Act of 2020 – included in the COVID bill – creates a “Small Claims Court” for copyright infringement called the Copyright Claims Board. It adds a new chapter to the Copyright Act. The “court”, or panel, can review claims and reach rulings. The judges are Article 3 activity – yet this panel is part of the Copyright Office, which is part of the Library of Congress. Crews asks, “Does it have the authority to render decisions?” The jobs are currently posted.

The “COVID Bill” also includes criminal penalties for video streaming. Crews notes a few more changes that include pre-1972 sound recordings, music licensing, government works and the public domain, and exceptions for people who are blind and visually impaired. Many have reacted to the CASE Act.

Crews focuses on “The Use Issue” – Section 107 for Fair Use or Section 110(2) for Distance Education. Did the users have permission? An institutional or Creative Commons license? Who created it? Who owns it?

Fair Use and the 4 Factors

  • (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • (2) the nature of the copyrighted work;
  • (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • (4) the effect of the use upon the potential market for or value of the copyrighted work.

The first factor and the fourth factor make the biggest difference, he confirms later in the webinar. Crews looks at particular examples from the courts which centralize these factors in their decision-making.

Future of Fair Use According to Crews

  • Back to the Four Factors – is it competing in the same market? Is it a true parody? Is it transformative? Is it not-for-profit?
  • No more guidelines, private interpretations, organizations to buy in (oh-so 1970s, 1990s)
  • Understanding how the other side sees it (a world with lots of different points of view)
  • Lawsuits are miniscule compared to the reality
  • Have a policy that guides your community through fair use (it should keep you current with developments – you need to be informed – and it needs to be flexible)

We are in an ongoing state of transition, and it is the nature of our digitally remixed world. Our thinking is going to rely heavily on the “Fair Use 4”, the growth of public domain and creative commons licensing, new laws (e.g. pre-1972 sound recordings and small claims) and old precedents. Crews stamps a question mark on the forehead of the Copyright Claims Board. We shall see!

More Resources Recommended by Attendees

The webinar concludes with two main questions from the (800+ person) audience. For anyone looking for more resources to help librarians with this topic, the facilitator (Colton) recommends the webinar chat with a nod to participants that contributed links:

Q: It seems that many court cases focus on the 1st and 4th fair use factor, is that true? 

Kenneth Crews, also called Kenny during this segment of the webinar, says that it is true and will continue to be true. There has been some debate about it in the courts. The facts of the case are most important, however. Where the facts exist in relationship to a factor, the factor is weighed more heavily.

Copyright and Online Storytime

The facilitator says there are many questions about copyright and online storytime. Crews begins by talking about the temporary licenses issued by many publishers during the pandemic. 

Crews suggests some fair use quick tips to adjust what you’re doing with online storytime:

  • Make it transformative – e.g. have participants act out the story
  • Only read a portion of the book
  • The effect on the market – overtly encourage people to buy a copy of the book if they like it! Promote good things, just like a book reviewer.

Follow Kenneth Crews on Twitter @kcrews.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.