The audience was surprisingly rapt at the CAA’s “Developing a Fair Use Code for the Visual Arts,” one of the last paneled sessions of the four-day conference which wrapped-up a few weeks ago. Presented by the newly-established Committee on Intellectual Property, the session was convened to discuss how the CAA will use their recently-awarded Mellon Grant in producing a Fair Use “Code of Practice.” (http://www.collegeart.org/news/2013/01/14/caa-receives-major-mellon-grant/) Panelists included Peter Jaszi of American University’s Intellectual Property Law Clinic (http://www.wcl.american.edu/ipclinic/), Pat Aufderheide, who directs AU’s Center for Social Media (http://centerforsocialmedia.org/), Jeffrey Cunard, a lawyer specializing in intellectual law and technology practice and Chris Sundt, an independent artist and editor who serves on the CAA Board of Directors. Jazsi and Aufderheide will be the principal investigators in developing the Code, and Cunard is currently co-chair of the CAA Task Force on Fair Use, and will also be a principal investigator.

“I’ve heard her before,” the woman sitting next to me whispered as Aufderheide began her rapid-fire presentation of how the committee will establish guidelines for using the Fair Use law as it exists now. “She’s great.”

Aufderheide was indeed an impressive voice on the panel, expertly delineating her work with the Center for Social Media, which includes studies of documentary filmmakers and other artists who need to use copyrighted materials in order to make their work. She explained that the main goal of the Code is to identify situations and problems that CAA members consistently confront when researching, teaching or making art, and to then describe appropriate and workable responses to those scenarios. Aufderheide explicitly said that the Code would not be new legislation (or proposed legislation), guidelines or rules for negotiation. Instead, the Code will be a resource of suggested practices of Fair Use based on situations and questions that frequently arise when working in the visual arts.

Assimilating, analyzing and presenting these scenarios will be a four-year process. The investigators are currently in their “mapping and investigating” phase, strategizing how to collect and interpret data. In or around April of this year, every CAA member will receive a survey in order to identify frequently-faced copyright problems or issues. The investigators will then organize panels and talks to discuss and document these concerns. By 2015, a draft of the code will be vetted by an expert panel of lawyers and academics. The Code will be published by 2016.

This project will focus on scholarly publishing (with a concentration on institutions) and artists’ use of copyrighted materials in their work. Emphasizing that this code will only present constructive ways to practice Fair Use, each panelist reiterated that the Code’s “main goal is to understand how this body of law is experienced in the community.” The panel said that the Code is intended to help scholars and artists more easily use copyrighted materials in their work; it’s also meant to allow the CAA constituency to feel more familiar with Fair Use and how it serves them.  The panel pointed to the number of resources for understanding Fair Use on the CAA website (http://www.collegeart.org/ip/ip_copyright_outside)

In his remarks, Jaszi gave a brief history of copyright law, noting that copyrights effectively last “forever” now, and that most people have little confidence in Fair Use. Jaszi described the “Transformative Factor” of Fair Use, and indicated that in the 1980s and 1990s, Fair Use was far more misunderstood. Jaszi stressed that there is judicial precedents and Fair Use scholarship today.

Fair Use is no longer the Wild West, the panelists all seemed to say. That stance —that our platforms or practices aren’t new anymore, but we’re still learning how to use them—seemed to be reiterated throughout the conference. Certainly attendees to the Fair Use Code panel seemed particularly veteran, and acutely interested in finding viable ways to use  third-party material. A woman a few seats down from me furiously typed notes throughout the talk, and the enthusiast whispering next to me had presumably attended an Aufderheide talk intellectual property and copyright when she heard her before. When the panelists took questions, hands shot up across the near-capacity room. Fair Use has been around and might be usable, but clearly explanation and strategies of implementation are still desperately wanted.

As for me, I’ve heard horror stories from my classmates, professors and colleagues about practicing Fair Use and acquiring copyrighted material. Years of research rendered essentially un-publishable by image fees and other infringement nightmares. Nevertheless, I’ve only really got my feet wet with copyright law and license acquisition in the past six months through a few different projects. What I’ve encountered pretty much shocks and frustrates me—using copyrighted images is prohibitively expensive, and at the end of the day, copyright holders are king. While I feel that creative work and other intellectual property should be protected, the grey areas seem vast and perilously murky. And certainly copyright challenges aren’t contained to the independents, as institutions are confronted with similar, if not the same, problems. The panelists seemed adamant that Fair Use doesn’t need revision, and that it is workable as it is now. But I wonder how (or if?) the law should evolve with the rise of ezines, ebooks and the like. I’ll also be interested to hear how the Code copes with the needs of the ever-growing field of independent curators, writers, researchers and publishers. How can we manage fees and negotiations? Where can we find legal counsel or advice if (or when) we need it? How can we maintain our independence if we coalesce to meet these challenges? At any rate, I’ll look forward to the Committee’s periodic reports on the investigators’ progress and findings, which I hope will be accessible on the CAA website to non-members.