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?

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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)

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Up until now, I’ve been a bit confused about how best to approach the meaning of fairness in a thoughtful enough way to help inform this project. Again, this study is a further investigation into copyright law and its impact on the ability of teachers and students to share access to teaching and learning materials in the digital age. But after reading John Rawls’ “Justice as Fairness“, I believe I now have a much more solid foundation upon which to move ahead with this inquiry.

While I initially thought the jump from the Greeks to 20th century political philosophy was going to be great (while it still may be), Rawls’ essay was incredibly helpful to me in breaking down a number of important concepts that I had not yet sorted out; these being the differentiation between notions of Justice, Equality and Fairness. This reading not only helped me to gain a better understanding of these words, their meanings, and how they’ve been used, but it guided me closer towards finding a definition of fairness in the digital age.

I also want to point out that the wiki for this project was a very helpful tool for gathering quotes and parsing key concepts in the essay. This process allowed me to manipulate text and arrange my ideas in a much more configurable way than simply paper and pen would have allowed. This observation of educational uses of networked tools is also a key focus of this project (and my graduate program more broadly) in understanding their use and how others perceive and ultimately decide to use them or not as effective methods of online communication.

In my next post, I will present my analysis of “Justice as Fairness” and how certain concepts found within may help to provide a useful framework for approaching this study.

In Book IX of The Republic, Socrates deliberates with Glaucon on the virtues of man and State. After both agree that the rule of the king is “the very best” and the rule of the tyrant is “the very worst,” Socrates adds

“There can be no mistake, I said, as to which is which, and therefore I will at once enquire whether you would arrive at a similar decision about their relative happiness and misery. And here we must not allow ourselves to be panic-stricken at the apparition of the tyrant, who is only a unit and may perhaps have a few retainers about him; but let us go as we ought into every corner of the city and look all about, and then we will give our opinion.”

Glaucon responds

“A fair invitation, he replied; and I see, as every one must, that a tyranny is the wretchedest form of government, and the rule of a king the happiest.”

In this passage, fairness is measured by the degree to which both reach agreement. Which, in this case, is absolute. The virtue of a city is considered here within the context of extremes: tyranny = wretchedness and rule of king = happiness. Perhaps had there been a third person present who saw things another way, the invitation may not have been considered equally as fair. But, this is not the case. Therefore, fairness is measured by the fact that all parties involved see the invitation as legitimate.

Socrates continues

“And in estimating the men too, may I not fairly make a like request, that I should have a judge whose mind can enter into and see through human nature? He must not be like a child who looks at the outside and is dazzled at the pompous aspect which the tyrannical nature assumes to the beholder, but let him be one who has a clear insight. May I suppose that the judgment is given in the hearing of us all by one who is able to judge, and has dwelt in the same place with him, and been present at his dally life and known him in his family relations, where he may be seen stripped of his tragedy attire, and again in the hour of public danger –he shall tell us about the happiness and misery of the tyrant when compared with other men?”

Glaucon

“That again, he said, is a very fair proposal.”

Why does Glaucon believe that Socrates’ proposal is fair? At the very basic level, we know it’s fair because Glaucon says it is. He agrees with Socrates and does not offer any further response. What would make Glaucon believe that Socrates’ proposal was unfair? Perhaps, (1) Socrates might have presented his narrative another way, (2) Glaucon might have seen things differently, or (3) other people may have been present during the conversation offering an alternative, leading to further debate before reaching agreement on the fairness of Socrates’ proposal.

Therefore, we can understand the meaning of fairness, in this passage of The Republic, by the extent to which Socrates and Glaucon - all parties involved - reach agreement on the legitimacy of the issues discussed above.