Dan Whalen is a JD candidate at Osgoode Hall Law School.
“Poetry, as a highly allusive art form, fundamentally relies on the poet’s ability to quote, to copy, and to ‘play’ with others’ language” – so says the Center for Social Media of American University (CSM). CSM has assembled the Code of Best Practices in Fair Use for Poetry to assist poets to exercise their fair use rights in using copyrighted materials in their work in the US.
The group first consulted poets directly in order to identify common expectations and obstacles, and the law schools of American University and the University of California Berkeley. The result was the preliminary report Poetry in New Media: A Users’ Guide. The updated, more comprehensive guide identifies the acceptable practices, per “the poetry community’s current consensus”, for seven of the most common modes of poetry use: (1) parody and satire; (2) new works "remixed" from other materials; (3) education; (4) criticism, comment or illustration; (5) epigraphs; (6) poetry online; and (7) literary performance.
Even a brief survey of the document reveals that its authors – who include Peter Jaszi, member of IP Osgoode’s International Advisory Council – intended it to be very practical and user-friendly. In addition to the list of best practices itself, the guide also informs readers of how to use the Code by clearly explaining what it is and is not. For instance, it emphasizes that the list of best practices are just that and not a description of the outer limits of fair use rights of copyrighted materials. Rather, the guide describes how poets can engage those rights in certain recurrent situations.
For each of the seven areas of best practices, the Code offers a definition, explains the underlying principle of fair use unique to that area, and the limitations of that principle. Regarding Education, for example, the Code first describes the use and importance of poetry in teaching. It then states the general principle that “instructors at all levels who devote class time to teaching examples of published poetry may reproduce those poems fully or partially in their teaching material.” Finally, it lists several restrictions of this principle, which include qualifiers like an emphasis on accuracy in reproducing works and a prohibition against substantial duplication of what is commercially available in textbooks.
True to their expressive inclinations, poets themselves have a fair bit to say in response to this guide. It has generally been lauded as a significant and helpful step forward. “[W]e’ve needed something like this for some time,” observed one; “the document represents a huge step in the right direction,” offered another. Despite such praise, the guide has also attracted some criticisms, mostly to do with the lack of popular input from a wide range of poets. One critic remarked: “Isn’t ‘consensus of poets’ a contradiction in terms?”
The guide is an invaluable tool; perhaps future iterations will include consultation with a wider cross-section of the poetry community.