Fair use is uncertain. Fair use is unpredictable. Fair use is fact-specific. Fair use is “the right to hire a lawyer.”
I happen to disagree with the characterization of fair use as completely unpredictable. That story is often spread in ways that encourage individuals and organizations to feel that fair use is too scary or unpredictable to ever take a bet on. But especially in areas where case law is limited or nonexistent, there are often a lot of conflicting opinions about whether a use is fair, and many individuals and organizations feel unable to take on the risk of a lawsuit – even one that they might have a greater than 50% chance of winning.
One of the benefits of the Google Books opinion (and Judge Baer’s Hathi Trust opinion) is that “fairly definitive” case law now exists in some areas where it didn’t. Both Ariel Katz and Kevin Smith have ably highlighted some of the spillover benefits to non-Google fair users; here are a few other areas where individual or organizational actors may feel themselves to be standing on more stable ground as a result of these decisions. These are drawn both from uses I was asked about (or made aware of) long before the Google Books decision, and from uses that people have asked me about -since- the decision.
Transformative Use of A Corpus
The Google Books and Hathi Trust decisions both highlight the transformative nature of digitization of works in order to make them searchable, and in order to make innovative analyses of mass bodies of works. This might be relevant for users who want to:
- digitize a collection of VHS tapes recorded off broadcast television in order to create a database or other record of which ads appeared in which order in relation to which shows, or in order to transcribe and perform computational analysis on the advertising content
- digitize a large chunk of the comic-book art of a particular illustrator, and run image analysis programs to detect patterns in the illustrator’s composition and figure drawing over time
- copy all extant recordings of a particular composer’s work in order to analyze patterns in performances
- create a shared open-licensed publicly searchable database of songs transcribed into musical symbolic data
- transcribe an entire run of a television series for scholarly analysis
- build and share a collection of still images captured from film, TV, and other video sources for scholarly (and student?) research
Fair Use and Disability Access
An underemphasized element of the Google Books (and Hathi Trust) decisions is how directly they support the proposition that digitization in order to provide access for users with disabilities is fair use. On this point, the judges are clear that access to the entire work by people with disabilities is valued: digitization “provides print-disabled individuals with the potential to search for books and read them in a format that is compatible with text enlargement software, text-to-speech screen access software, and Braille devices. Digitization facilitates the conversion of books to audio and tactile formats, increasing access for individuals with disabilities.” (Chin decision, p. 11 – emphasis mine.)
Judge Baer is even more vehement: “[t]he use of digital copies to facilitate access for print-disabled persons is also transformative. FN: Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13–12:8″ (Baer opinion, p. 18 – emphasis mine.)
U.S. copyright statutes do provide an exception that enables access for users with disabilities, but the exception is tightly bounded and limited in terms of what types of access can be provided, by whom, and to whom. Many organizations who wished to provide services for users with disabilities have felt constrained by copyright law, and have been unwilling to rely on fair use. Perhaps people will consider these judicial endorsements relevant when:
- adding captions to video content released without them
- creating full-length transcripts of video or audio content for users with disabilities that present challenges for auditory comprehension
(I should add that I’ve heard quite a few questions about captioning and transcripts for educational purposes – that is, people have been unsure whether it is legal to add captions or create transcripts for materials used in non-profit classroom contexts. The Google Books decision suggests it may be legal to do so even in commercial or non-classroom contexts.)
- scanning visual artworks in order to provide magnified copies for users with visual disabilities
- using 3D scanners and 3D printers to create manipulable reproductions of artwork for users who are benefitted by tactile interaction with the works
- digitizing all manner of inputs for tactile displays
Here’s hoping that fair use will continue to evolve with consideration for players beyond those directly party to a lawsuit – it could go a long way to defining and/or reducing the risks for some very socially beneficial users.
1. Betacam SP Scanning Station CC-BY Carl Malamud
2. 3D Printed Beethoven CC-BY Creative Tools