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May, 2020

The Fair Users: Free Speech in Action Rackham Interdisciplinary Workshop met six times during the 2019-2020 academic year. The first five workshop meetings were held in the Hatcher Gallery Lab (located in the Hatcher Graduate Library) and the final workshop meeting was held remotely by video conference. Each of the workshops focused on a specific topic related to fair use and free speech and featured one or more invited speakers. The topics of the sessions were as follows:

Session 1: Fair Use, Visual Arts, and Speech: How fair use relates to visual art and expression as speech

Session 2: Fair Use Foundations: Framing the Conversation: Why it Matters in Universities and Libraries

Session 3: Fair Use, Academic Freedom, and the Permissions Culture: How fear of fair use (and absence in most countries) curtails research, scholarship, and learning

Session 4: Fair Use and Free Speech: Exploring the relationship between fair use, free speech, and censorship

Session 5: Fair Use: Let’s Boldly Go!: A discussion of ComicMix v. Dr. Seuss, a fair use case involving a book mashup of Star Trek and Dr. Seuss

Session 6: Fair Use and Next Steps: Advocating for fair use

These sessions, in which participants explored issues of fair use in art, academic research, censorship, and literature, included detailed discussions of the origins, history, and nature of fair use, factors used in legal proceedings to analyze fair use claims, and how to make arguments and advocate for fair use. Participants also examined social dimensions of fair uses cases, including communication and negotiation with rights holders, strategies used to mitigate escalation of copyright infringement claims, and social developments that have changed the nature and application of fair use over time. The final session focused on how the development of fair use guidelines within specific communities of practice in the United States (e.g., documentary film-making and preservation of cultural heritage) dramatically expanded lawful uses of copyrighted materials to the betterment of those communities and society.

Attendees included undergraduate and graduate students, librarians, professors, and lawyers. There were between nine and eighteen participants (including speakers) at the different sessions—eighteen, ten, twelve, nine, eleven, and twelve participants, respectively. Some sessions were organized around presentations by the invited speakers with discussion following and some were more free-form conversation. While many participants attended multiple or all the sessions, some attended only one or two.

The engagement and energy of participants was high. Each one-and-a-half hour session was full of discussion and many participants noted how short the sessions seemed. Participants particularly valued the interdisciplinary nature of the workshop. In some cases, former colleagues who had not seen each other for years, due to a lack of cross-cutting work, were reunited. It was clear also that participants valued learning from presenters and from one another about concerns, perspectives, and practices related to fair use.

At the same time, the varied interests, sizes of the groups, and time constraints had consequences for the depth at which some participants’ ideas and questions could be explored. In discussing possible next steps, our organizing group discussed strategies, such as limiting sessions to smaller numbers of participants or having breakout discussions, in order to allow participants to get to know one another better and hone in on particular topics and interests.

This was an interesting dynamic that materialized through discussions and the structure of the workshop itself: while issues of fair use cut across so many interests and scenarios, there are natural affinities that emerge due to the particular cultures, practices, and concerns of different communities. Thus, while there is tremendous value in sharing knowledge, experiences, and practices across affinity groups, there is also a reality that effective initiatives and advocacy for fair use take place within particular communities and groups (i.e., communities of practice).

These tensions describe the main collaborative directions that the organizers identified from the workshop. On one hand, possibilities emerged for greater research and knowledge-sharing to understand how students, scholars, and professionals are being affected by norms that discourage fair use. In this vein, one of the presenters shared the results of research she had conducted with the organizers. On the other hand, the organizers discussed ways of promoting literacy and advocating for fair use in particular domains, particularly through class or workshop sessions and the development of guidelines for students in creative arts at the University of Michigan.

Some immediate actions the organizers discussed were posting a synthesis of notes from the sessions on the workshop website and inviting participants to write short blog entries reacting to the sessions or discussing fair use in the context of their work (also to be posted on the website). These would provide means of sharing valuable perspectives on fair use more broadly and enhancing use of the workshop website, which has so far been limited to communicating the workshop schedule and topics to participants.

Overall, our organizing group was very pleased with the outcomes of the workshop. In thinking about how to take our work forward, one thing we considered was a greater degree of flexibility in structure. For instance, one idea was to organize a “workshop” around a collaborative group project that might proceed throughout the year. In this case, sessions with invited speakers might develop organically based on issues arising in the conduct of the project. We were unsure whether the current format of the Rackham workshops would allow for this kind of flexibility but it might be something to consider for the RIW program in the future.