I am delighted to kick off the third day of the 11th Fair Use Week with a guest post by my colleague, friend, and fellow Library Future’er Jennie Rose Halperin. In this post she emphasizes fair use’s present challenges especially in the context of the internet and the rise of generative AI, but calls for the potential for a “Fair New Deal.” – Kyle K. Courtney
A Fair New Deal for Creators and Communities
by Jennie Rose Halperin
Whenever I talk about the importance of fair use with my friends who are less enthusiastic about copyright (yes, I have a few), I usually see their eyes glaze over with a combination of disinterest and confusion. Fair use – exalted by copyright nerds, reviled among rich rightsholders, and ignored by 99.9% of the population – is a crucial aspect of U.S. copyright law, particularly on the Internet. And, as the public grapples with the quick rise in consumer grade generative AI, fair use is having a moment. Even so, fair use can feel like an outdated concept. Why care about fair use when everything is online? And shouldn’t online content be licensed anyway? (Everything is not online, and please no!)
Some of us Fair Use enthusiasts dedicate our free time to writing blog posts singing its praises, but it appears that we are grappling with a public relations challenge, particularly in light of the growing instability in the field of artistic work. The increasing precarity can be attributed to various factors, including the influence of platform intermediaries and middlemen (or “chokepoint capitalism”), wealth inequality, licensing complexities, corporate consolidation, and the emergence of new tools reshaping the landscape of creative work. Instead of addressing these underlying issues, there’s a tendency to place blame on the very concept that facilitates the free exchange of ideas – fair use. In June, the artist Molly Crabapple said the following in conversation with Paris Marx on Tech Won’t Save Us:
Marx: There was a blog published by Creative Commons back in February, that was arguing that the use of the scraping of the Internet to take all these images and all this text and all these resources to train these generative AI things should be considered fair use.
Crabapple: Ha! I wish I never gave some of my work to Creative Commons. I wish I could take it back. God, I despise them.1
Yikes! While I wish Crabapple’s statement were just a provocative exaggeration, it unfortunately echoes the opinion of a number of artists. Although Crabapple and Marx do not seem to fully grasp either copyright or Generative AI, their apprehensions about the future of art warrant serious consideration.2
Fair use enthusiasts recognize that the solution to the instability of artists in society isn’t simply “more copyright,” as the current framework does not effectively protect anyone beyond the wealthiest rightsholders. As Cory Doctorow wrote last year, “Giving a creator more copyright is like giving a bullied schoolkid extra lunch money. It doesn’t matter how much lunch money you give that kid — the bullies will take it all, and the kid will still go hungry… But creative workers have been conditioned — by big media and tech companies — to reflexively turn to copyright as the cure-all for every pathology.”
As open access enthusiasts challenging the influence of big media, we must articulate a positive agenda that rebuts the assertions made by major content players regarding fair use, sharing, and the innate human inclination to support the art they love. But the question remains: What does this agenda entail? What does a “Fair New Deal” for content creators look like?
Or, in the words of my brilliant colleague Amanda Levendowski: Let’s put the fair back in fair use.
A Fair New Deal for content creators involves advocating for a balance between the protection of creative works and the promotion of a vibrant, accessible cultural landscape. It could include:
- Empowering Individual Creators: Prioritize the rights and fair compensation of individual artists over corporate interests, ensuring that creators retain control and receive just rewards for their work.
- Preserving Fair Use: Strengthen and protect fair use provisions to allow for the reasonable use of copyrighted material, fostering innovation, education, and creative expression without stifling creators or impeding progress.
- Promoting Open Access: Encourage the adoption of open access models, facilitating the widespread availability of creative works while respecting the rights of creators and compensating them fairly.
- Enhancing the Public Domain: Support policies that promote the growth of the public domain, ensuring that cultural and creative works become part of the common heritage for future generations.
- Fair Compensation in the Digital Age: Advocate for fair compensation frameworks that consider the evolving digital landscape, addressing issues such as streaming, licensing, and digital distribution to ensure equitable payment for creators.
- Educational Initiatives: Promote awareness and education about copyright, fair use, and creative rights to foster a culture that values and respects the intellectual property of creators.
- Community Building: Encourage collaboration and community support for creators, fostering networks that empower artists, enable sharing, and celebrate diverse voices and perspectives.
- Transparent Licensing Practices: Advocate for transparency in licensing agreements, ensuring that creators have a clear understanding of how their work is used and are fairly compensated for its utilization.3
A few weeks back, a group of fellow fair use enthusiasts gathered to delve into the moral, social, and economic complexities of copyright, aware of the hurdles that artists confront in a landscape where open access is increasingly under threat and lucrative licensing deals line the pockets of big content. While Generative AI isn’t the root cause of these challenges, it has undeniably thrust them into the spotlight. Now is the moment for those who prioritize both sharing and equity to unite, collectively advocating for something fair and beneficial for everyone.
To my fellow fair use enthusiasts, I pose a challenge: What does a positive policy agenda that safeguards fair use, fosters creative expression, and promotes sharing look like? How can we unite to protect, encourage, disseminate, and ensure fair compensation for creative work? If you’re passionate about shaping this agenda, interested in making a positive impact, and eager to contribute, please join us! Together, we can work towards a more equitable and vibrant future for both creative expression and fair use.
- Creative Commons, we love you! <3 ↩︎
- It’s important to note that copyright is not designed as a tool to promote labor equity, and AI does not copy in a human sense. For more on this topic and more, please see… the Creative Commons blog post on this subject. I also recommend reading or listening to Pam Samuelson’s scholarship. ↩︎
- In the interest of full disclosure, I used Chat GPT to edit this piece (the natural human inclination to sound smarter!) and these principles were written with its help, but I thought they were so good that I am including them. ↩︎