Jason Mittell asks the C3 partners how we view Fair Use in our business models.
As an advertising agency, the copyright issue is pretty cut and dried for us: it's our client's copyrights; we follow their lead. We don't create much media on our own, with the exceptions of some books published by GSD&M LP, such as recently published The Amazing Faiths of Texas.
To be honest, there is surprisingly little discussion of copyright outside the realm of "Who owns it; how much do they want for it?" Few at the agency are interested in Lawrence Lessig's books. So, I think it's clear where a typical ad agency stands.
However, there are cracks, specifically around audience participation, because once you entertain the thought of having others incorporate your work into theirs, you have to figure out how to give them permission to do so. Where people tend to net out, though, is shy of a Creative Commons License. They tend to make the acceptable use an exception of "All Rights Reserved," which outlines specifically what other people can do with their content, as opposed to "Some Rights Reserved", which typically does not.
Why? I think primarily for three reasons: 1) defaulting to stringent copyright interpretation is easy, indeed; there's no questioning of your own assumptions involved; 2) doing so lessens your time with the lawyers, and 3) revolutionaries are not rewarded, so there's little incentive to do something different. This, despite that fact that audiences are changing.
Also, for copyright holders, the default answer of "No!" to reuse is easy. It doesn't take thought, and it doesn't take record keeping. Therefore, I think participatory culture will thrive in a parallel universe of Creative Commons licensed content.
Let me try answering one of Mittell's questions directly.
"Why would the industry want to restrict educational practices that primarily teach students how to consume and create the very products that they wish to sell?"
I think there are additional answers other than Mittell's answer of 1) copyright viewed as real property, and 2) what I call the "opening the floodgates" argument. Those may be valid arguments, but there others as well. Primarily, it's easy to say, "No." It's hard to say, "Yes". Exceptions are inefficient in an inefficient media copyright economy.
Secondarily, there are so few students that go through a media studies course, compared to the size of many of the media's audiences, that I would imagine the copyright owners do not see a benefit to the amount of time it would take them to administer "Yes". I'm not saying this is right, I'm saying these are realistic forces at work against fair use. Understanding them is important so that we can develop strategies to change them.
Still, are there any instances where a typical company allows others to repurpose their work? Yes, when talking to reporters. I find it fascinating that in a corporate culture immersed in one side of copyright, companies allow any class of people to repurpose their work. But reporters are such a class. When someone from a company talks to a reporter, they know that reporter--and not them--has control of what the audience sees. In this way, reporters are similar to participatory audiences.
This points to the fundamental difference between advertising and PR; in advertising, we control the message and the medium; in PR we control neither; but both means are typically used for similar ends. The reporter class has mores that have developed over time, which may not apply to the public at large, providing some assurances to the "content owners" that at the very least, they have a shot of being heard fairly.
I think you could argue, then, that there's precedence for allowing at least some repurposing or fair use based upon existing business practices. Also, I've noticed a gray line of press releases, publicity stills, and PR video. I've seen a number of PR shots reused on websites without those websites being hassled by the copyright owner. When asked about it, at least one website owner I talked to said, "That's why they're there. They want people like us to use them, so they get more publicity." Hmmm....sounds like the same rationale I give my clients for allowing their fans to repurpose their work.
While not a solution to the questions Mittell's outlined, maybe these thoughts could point the way to an effective argument for fair use based upon existing precedence.
(Disclaimer: These are my personal views and not necessarily those of my employer, GSD&M. Nor am I a lawyer.)