Strengthening Canadian User Rights through Shared Understanding: Adapting the Codes of Best Practice

In this book, Patricia Aufderheide and Peter Jaszi speak to both the flexibility of the fair use doctrine in the US, and the power behind the development of a series of fair use codes of best practices for several different communities of practice. [...] Jessica Litman’s classic account of the bargaining leading up to the passage of the Digital Millennium Copyright Act (DMCA) found that in the end, the bill’s “laundry list of narrow exceptions..discourage[d] the inference that the classic general exceptions and privileges apply.” The DMCA’s narrow exceptions were the product of what Litman described as what “a variety of private parties were able. [...] Falzone and Urban go on to highlight one of the weaknesses of fair use, that uncertainty and perceived unpredictability of the application of fair use in specific situations, combined with the significant cost of litigation, may cause risk aversion which “leads to self-censorship and other failure of the balancing system in copyright; it squelches the creativity copyright is intended to incentiviz. [...] Digital artifacts and the tools needed to access them by their nature are copying intensive and the lack of clarity around the scope of fair dealing as it applies to the preservation and provision of access to these objects and tools has hindered the fundamental, purposive work of ensuring the longevity of and access to valuable cultural objects (J. [...] 12) placed the types of preservation activities and uses that the community engaged in “at the heart” of fair use’s balancing of the distinct purposes of the software publisher and those of a preservationist/researcher.