Fair Use, Media and Education in the Digital Age

In this space, I hope to extract some key concepts from John Rawls’ “Justice as Fairness” (snapshot above from JSTOR) that might later be applied towards reaching a definition, and measurement, of fairness in the digital age.

Rawls approaches a definition of justice by first looking at what equality means and separates it from its connection to justice. After determining the relationship between equality and justice, he then works towards a definition of fairness, through stating what constitutes a just practice and by describing what he means by fair play. It is at this point, that we can then begin to consider Rawls’ definition of fairness “as applied to practice” as I will discuss in greater detail by highlighting the following passages below.

Rawls explores the difference between justice and equality and the roles of each in the design and practice of social institutions. He explores the two by separating out what “sort of inequalities are permissible” (165) in this context.

An inequality is allowed only if there is reason to believe that the practice with the inequality, or resulting in it, will work for the advantage of every party engaging in it. Here it is important to stress that every party must gain from the inequality.” (167)

The key here is that each person, whether equal or not, must be equally involved and included in the deliberative process about a particular practice in order to best determine the rules from which each person involved will ultimately benefit. This statement builds upon my previous study of fairness in Plato’s Republic, when I wrote that “fairness is measured by the fact that all parties involved see the invitation as legitimate.” However, Rawls adds that the presence of “conflicting claims” is another key ingredient in determining the principles of justice in the design of practices.

Questions of justice arise when conflicting claims are made upon the design of a practice and where it is taken for granted that each person will insist, as far as possible, on what he considers his rights. It is typical of cases of justice to involve persons who are pressing one another their claims, between which a fair balance or equilibrium must be found.” (172)

Therefore, the presence of conflicting claims not only sparks questions of justice, but becomes a necessary component in determining principles of justice. Similarly, Rawls adds that this is connected with “a familiar way of thinking” that goes back to “the Greek Sophists” (174). In this way, he reaches a definition of justice as

“The virtue of practices where there are assumed to be competing interests and conflicting claims, and where it is supposed that persons will press their rights on each other.” (175)

We can now begin to consider, in relation to justice, what Rawls defines as a fair practice. He writes, “Fairness relates to the right dealing between persons who are cooperating with or competing against one another, as when one speaks of fair games, fair competition, and fair bargains” (178). And with this, he highlights three key attributes which I would describe as the following:

1. Sharing in Benefits and Burdens
2. Mutual Acceptance of Practice
3. Commitment to Principles

On #1, he writes “The question of fairness arises when free persons, who have no authority over one another, are engaging in a joint activity and amongst themselves settling or acknowledging the rules which define it and which determine respective share in its benefits and burdens” (178).

On #2, “A practice is just or fair, then, when it satisfies the principles which those who participate in it could propose to one another for mutual acceptance under the afore-mentioned circumstances” (178).

And on #3, “If the participants in a practice accept its rules as fair, and so have no complaint to lodge against it, there arises a prima facta duty (and corresponding prima facie right) of the parties to each other to act in accordance with the practices when it falls upon them to comply.” (179)

With regard to fair play, Rawls describes personal actions that may be considered as unfair. These attributes include:

• “Taking advantage of loop-holes or ambiguities in rules
• Availing onself of unexpected or special circumstances which make it impossible to enforce them
• Insisting that rules be enforced to one’s advantage when they should be suspended, and more generally
• Acting contrary to the intention of a practice.” (180)

Therefore, the “duty of fair play” includes the prerequisite that people “will be required to forego particular advantages” (181) in order for all parties to reach agreement and commit to a practice that can be deemed legitimate and mutually beneficial by all. Rawls also includes in this definition that participants involved in a common practice must reflect certain “aspirations and interests of the others to be realized by their joint activity” (182). Images of baseball and other team sporting activities come to mind in this definition of fair play, as Rawls discusses:

Players in a game do not protest against there being different positions, such as batter, pitcher, catcher, and the like, nor to their being various privileges and powers and specified by the rules . . . (167)

As I have attempted to show, Rawls definition of fairness is based on a number of factors involving group deliberation around issues of common interest and a commitment to seeing through certain principles for the mutual benefit of those involved. We can also see that fair play becomes useful tool in reaching a definition of fairness, particularly among the examples listed above. While there remains much more to discuss in this essay and context to provide, I hope this post will at least prove to be a useful resource and reference later in the semester when I will begin to form my thesis around the meaning of fairness in the digital age.