Fair Use, Media and Education in the Digital Age

This week, I reviewed Kenneth D. Crews’ “Fair-Use: Overview and Meaning for Higher Education” (last update: 2000) and a Q&A with Peter Lyman published in Educom Review, titled “Copyright and Fair Use in the Digital Age” (1995). These articles were helpful to me in moving this study closer towards the domain in which it’s ultimately concerned. That is understanding when, how and why networked technologies create tension between copyright holders and those interested in using the intellectual property of others for teaching and learning in the digital age.

Crews reiterates the fact that “the law provides no clear and direct answers about the scope of fair use and its meaning in specific situations.” The Four Factors are instead meant as guidelines for determining whether or not a use is considered to be fair use (as mentioned earlier). He goes on to say that it’s important to “keep in mind that fair use requires weighing and balancing all four factors before reaching a conclusion,” which he breaks down as the purpose, nature, amount, and effect of the use in its analysis.

As I was reading this article, I began to consider these factors within the context of participatory platforms. More specifically, I thought about the meaning of “transformative” use and what happens when a copyrighted work is re-published on the web in a space where it’s being responded to, and ideas are added to it, by a wider audience. Does the use of the platform, and its potential value added by contributors, make the use of the original work transformative? Do we need a new framework for measuring fair use perhaps based on the degree to which people add knowledge to a copyrighted work through commons-based peer production?

Peter Lyman stated in 1995 that the “information highway” might not be the appropriate classification of the web because of its association to private property.

The security of private property on the information highway might be protected by surveillance technologies, but that could bring the historical process of technical and social innovation to a sudden stop, and it doesn’t address related values, such as free speech and the public good.

Therefore, Lyman asks whether fair use is an “adequate mechanism” for protecting the networked intellectual property of multimedia communication? Instead, he states that licensing might in fact be more appropriate than fair use in this case.

Returning to my observation above about the transformative nature of copyrighted works in a networked environment, Lyman states

Electronic collaboration is a bit more like a performing art–much of the value of collaboration is in the doing of it. And equally important, it is possible to make your work directly available to everyone around the globe without the intervention of a publisher.

What I am curious to learn, moving forward, is exactly this. How do we measure fair use in a participatory digital culture and how might we apply Rawls’ definitions of fairness and fair play within this context?