Where so many writers criticize and criticize, Carroll actually offers a concrete solution to the problem he gripes about, which I found refreshing. Though his agenda might to an extent color his first section, where he lays out the problems with fair use as it stands now, I found that this section was reasonable, tied to facts and particular cases to illustrate his points. I found this section to be the most convincing. Carroll explains how cloudy the area of fair use is, without any real precedent to go by, with decisions being extraordinarily case specific and the principle of fair use only being a standard and not a rule. Even the set of four guidelines laid out in the U.S. Copyright Statute which are to be considered as factors in deciding a fair use case are vague and open to interpretation and have been taken in opposing directions depending on the case.
In terms of Carroll’s solutions, while I find his thinking extremely clear and reasonable, I am not convinced that his solution is realistic and not idealistic. I am also not completely convinced that, as a partial solution, a more concrete set of rules would not be helpful. While I understand that it is a delicate area where rules might be too “over- and under inclusive” I think that in terms of really making fair use more accessible—which seems to be his impetus—the general public needs to be able to rely on a stricter set of guidelines. His plan, which I believe seems sound for larger entities willing to invest their time and money in the process, still seems like it might deter the common citizen who might be reluctant to enter into such a time consuming and involved procedure. How many individuals with small scale projects do you think would rather just attain licensing rights and be done with it, than embark on this process to be assured fair use? Do you think there is any possibility of the money ever being spent to create an entire entity like this, and do you think it would actually broaden participation in fair use?
I also felt Carroll’s solutions were unrealistic. I agree that fair use has very blurred guidelines but the advisory panel he suggested sounds like a waste of time and money. I don’t have a better solution but someone must.
I do agree that some of Carroll’s solutions do seem idealistic. By creating the Fair Use Board, Carroll believes that copyright law would improve through the balancing of freedoms of the authors with the public’s fair use of copyrighted material. However, to create such a Board takes complex organization and a lot of money for the hope and possibility that it would improve the current copyright system. Carroll says the process would ideally be self-funded, but the reality of that seems unlikely. This process could end up being time and money consuming, which could prevent people from even attempting to try and gain fair use protection. The outline of timing could also potentially cause problems if the copyright owner can’t be found to file a suit against the use of his/her copyrighted material.
Carroll does make an important conclusion that uses of copyrighted material often fall into patterns. If over time these specific fair uses were recognized, then maybe some clarity can be brought to the current structure of fair use protection. Fair use has always embodied a sense of uncertainty because the law does not always guarantee fair use. Exceptions to the rules often come to light somehow and often blur what has been decided before.
If the board only makes sense to larger entities, then the whole system is basically pointless. For any larger entity, it’s highly likely that their work is not going to have a very significant market effect and all that people before that board are going to need to say is “that groups plans to make a ton of money using my work. This is the quintessential protection granted by copyright.” With this in mind, most large companies and groups would just forget the whole thing all together.
It sounds like a bureaucratic nightmare to me.
Non-profits and NGOs might use the board, as some of their productions are non-commercial, but the need here is with the common citizen. Yes, they might sit through the whole process because they don’t have the money to just license it, but overall this system would just hurt non-commercial creativity because A) having an official board, regardless of bureaucracy, gives the copyright holders a very persuasive argument of “why didn’t go through the official channels, and B) because of that people who think they have a cool idea for something are just going to quit before they start because they don’t have the time to go through this board.