Here’s the latest excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. We’re running a bit late with these, and will have one more excerpt next week. If you want to see the first excerpt and the second excerpt, go check them out.

This particular excerpt discusses the differences between fair use, the public domain and Creative Commons

People who are well aware of how copyright ownership weighs on new creators often confuse fair

use with efforts to recover and recreate the public domain, or material not (or no longer) bound by

copyright ownership. Sometimes they even think these efforts are in competition. In fact, they are

complementary ways to address the same general problem, as David Bollier has noted.

Furthermore, enthusiasm for public domain work sometimes leads people to believe that fair

use is not as useful as it is. This is because they have been drawn to public domain work by their

frustration with copyright ownership restrictions, and have associated all of copyright with copyright

ownership. They have not yet become aware of the flexibility and power of the fair use doctrine,

and they see one side of copyright as the only side. Sometimes they simply do not have faith that

copyright imbalance can be righted.

Creative Commons (CC) is possibly the best-publicized of the efforts to create an artificial public

domain to compensate for the badly eroded zone of copyright-free work. It was launched by legal

scholar Lawrence Lessig, who indeed was dismissive, even contemptuous, of the potential of fair

use to address copyright imbalance. However, CC was not an attempt to supplant or be better than

fair use. Rather it was an attempt to solve a different problem: how to allow people to give away or

condition their long and strong copyright. CC licenses use the strength of owners’ rights to allow

owners the leeway to release their works into an artificial public domain.

So CC creates a zone inside copyright ownership for owners who want to be generous and give

their works away. All CC licenses impose some conditions, and some impose more than others.

(Some people ignore this; owners of CC licenses sometimes complain that people do not honor the

conditions.) This makes CC a copyright-light zone rather than copyright-free zone, and of course

it does nothing (and doesn’t pretend to) to loosen long and strong copyright policy—rather, it

depends upon it.

A CC license, intended to promote circulation of work, may limit it to the alternative CC world it

was born into. This is precisely because it is designed to be an alternative to rather than a feature of

the copyrighted environment. Many CC licenses forbid the use of digital rights management (DRM),

which is standard to all commercial DVD contracts. Thus, a CC license may kill a distribution deal.

Even people who depend upon CC licenses, such as the makers of open educational resources—scholarly materials of all kinds, available free on the web—still sometimes need fair use. That is

because most new work refers to existing culture. When that happens, people need to exercise their

right of fair use, because most work is not in the copyright-light, fenced-in zone.

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