Fair Use, Public Domain And Creative Commons: They're Not All The Same
from the important-differences dept
Here’s the latest excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. We’re running a bit late with these, and will have one more excerpt next week. If you want to see the first excerpt and the second excerpt, go check them out.
Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we’ll try to incorporate them into the Q&A.
This particular excerpt discusses the differences between fair use, the public domain and Creative Commons
People who are well aware of how copyright ownership weighs on new creators often confuse fair
use with efforts to recover and recreate the public domain, or material not (or no longer) bound by
copyright ownership. Sometimes they even think these efforts are in competition. In fact, they are
complementary ways to address the same general problem, as David Bollier has noted.
Furthermore, enthusiasm for public domain work sometimes leads people to believe that fair
use is not as useful as it is. This is because they have been drawn to public domain work by their
frustration with copyright ownership restrictions, and have associated all of copyright with copyright
ownership. They have not yet become aware of the flexibility and power of the fair use doctrine,
and they see one side of copyright as the only side. Sometimes they simply do not have faith that
copyright imbalance can be righted.
Creative Commons (CC) is possibly the best-publicized of the efforts to create an artificial public
domain to compensate for the badly eroded zone of copyright-free work. It was launched by legal
scholar Lawrence Lessig, who indeed was dismissive, even contemptuous, of the potential of fair
use to address copyright imbalance. However, CC was not an attempt to supplant or be better than
fair use. Rather it was an attempt to solve a different problem: how to allow people to give away or
condition their long and strong copyright. CC licenses use the strength of owners’ rights to allow
owners the leeway to release their works into an artificial public domain.
So CC creates a zone inside copyright ownership for owners who want to be generous and give
their works away. All CC licenses impose some conditions, and some impose more than others.
(Some people ignore this; owners of CC licenses sometimes complain that people do not honor the
conditions.) This makes CC a copyright-light zone rather than copyright-free zone, and of course
it does nothing (and doesn’t pretend to) to loosen long and strong copyright policy—rather, it
depends upon it.
A CC license, intended to promote circulation of work, may limit it to the alternative CC world it
was born into. This is precisely because it is designed to be an alternative to rather than a feature of
the copyrighted environment. Many CC licenses forbid the use of digital rights management (DRM),
which is standard to all commercial DVD contracts. Thus, a CC license may kill a distribution deal.
Even people who depend upon CC licenses, such as the makers of open educational resources—scholarly materials of all kinds, available free on the web—still sometimes need fair use. That is
because most new work refers to existing culture. When that happens, people need to exercise their
right of fair use, because most work is not in the copyright-light, fenced-in zone.