The market value for fair use?
Avi Santo - February 27th, 2007Recently, we’ve been having some discussion about our current Fair Use statement, reprinted below:
MediaCommons is a strong advocate for the right of media scholars to quote from the materials they analyze, as protected by the principle of “fair use.” If such quotation is necessary to a scholar’s argument, if the quotation serves to support a scholar’s original analysis or pedagogical purpose , and if the quotation does not harm the market value of the original text - but rather, and on the contrary, enhances it - we must defend the scholar’s right to quote from the media texts under study.
In particular, the bolded text has come under some scrutiny. The debate has centered on two equally important questions:
1) To what extent are we either harming or protecting our rights through the inclusion of this statement, and,
2) To what extent are we actually challenging the interpretation of fair use through its inclusion?
Bob has advocated that we not validate the notion that market value — either positive or negative — should play any part in claiming the right to fair use. Ben also thinks this is the bolder position to take.
Kathleen not only pointed out that the effect on market value is one of four criteria recognized under copyright law for determining fair use – and thus by claiming our non-detrimental impact we are protecting our claims - but she also argued that MediaCommons should actively promote the idea that academic criticism - by actually calling attention to particular media texts - (potentially) enhances their market value.
The actual statute states that in judging whether fair use can be invoked, one of the factors to be considered should be “the effect of the use upon the potential market for or value of the copyrighted work”. In our rewording, we emphasize the contrary notion of increased value through reproduction for the sake of public criticism as a direct challenge to the short-sightedness of those too quick to claim copyright violation.
While I agree that these public criticisms may in fact increase interest – and possibly value – for some of the materials being discussed, I wonder if our challenge needs to be directed toward expanding the taken-for-granted definitions of the statute’s stipulated terms “effect” and “value”; extending these beyond – while not entirely dismissing – the realm of the economic. New ways of understanding and critically engaging with media certainly can affect the market for and value of the texts being discussed, but the degree to which media literacy effects an audience’s appreciation for a given text and the cultural values they assign said text cannot — and should not — be transparently overlaid on top of its economic value.
First of all, I think that a distinction can be made between the normative, or ethical, arguments regarding the correct position of MediaCommons with respect to fair usage in an academic context, and pragmatic arguments that deal not with a future that should be striven for, but with the necessary facts and the constraints that these impose upon us. The first of the arguments, the normative one, that stresses that we should not validate the importance of market value in fair use emphasizes one of the goals of this project, as I understand it from the little time I have been here: To change the perception of fair use so as to pertain to scholarly discussions. It supports the broadening of our perception of importance from simply market value, to scholarly value. The second argument deals with another aspect of the project: to facilitate academic dialogue now. The normative argument sets forth conditions for reforming the entire structure and thus accomplishing the long-term goals of the project. The pragmatic argument sets forth the conditions that must be met in order to begin to institute this project within the present constraints.
The long-term goals of the project can only be feasibly striven towards once the project has been instituted in the first place, and so has some value for the community. On the other hand, the short-term goals of the project are very much interwoven with the long-term goals of the project. Indeed, without the overall narrative of changing fair use criteria, it is open to debate whether or not the short-term issue of facilitating academic discussion with respect to media would have much significant value, or whether it would be able to survive beyond the short-term. Each argument is valid given the respective context of long-term ethical investments and short-term pragmatic interests. Of course, they are not arguments against each other, but arguments in favor of the productive direction of MediaCommons.
I agree that it is especially important to note, just for discussion, how we are to construe the term “value.” There is certainly an assumption that value is economic in character. There is a multiplicity of social universes, and each of them has at its center a particular notion of what is valuable. The economic universe is only one among these, and the laws and concerns of each universe are not inherently reducible to the laws and concerns of another. Therefore, there are two interesting things to note. First of all, what is valuable in the academic world is not the same (ideally) as what is valuable in the economic world. There are whole new dimensions of academic capital that are not reducible to issues of money. Therefore, one could argue that in fact the type of value dealt with in MediaCommons is academic, not economic. This would, logically (though perhaps not legally), discount arguments focused toward impacts on the economic value of the portrayed media. Further, one could argue that the academic value of such media is in fact increased, not simply as a function of how interested or important the object is seen to be, but also in the fact that the object is endowed with a whole new form of value.
Secondly, a clear distinction needs to be made in our analysis of the statement: “the effect of the use upon the potential market for or value of the copyrighted work.” The statement that you quote at the beginning of the article deals with “market value.” However, this joins a disjunctive connection between “market for” and “value.” The statute does not, as quoted, make a connection between the two (i.e. “market value”). Therefore the above arguments about academic value become once again relevant to the pragmatic dispute as to how we can justify the use of media within existing legal constraints. For the statute does not presuppose, as does the fair use statement of MediaCommons, that value must be economic value. It is a question of the market for OR value of. Indeed, an argument could be made that not only is the market being extended to an academic audience, but that value is being added, not in terms of economic value (although this is certainly feasible given the increased exposure), but in terms of academic value. Of course, we are also assuming that “market value” means economic value. But what do we mean by “market”?