I just finished reading another article proposing a solution to the current complicated state of educational fair use. The author, judicial law clerk and education law professor David Simon, suggests in the article “Teaching Without Infringement: A New Model for Educational Fair Use” published in the Fordham Intellectual Property, Media and Entertainment Law Journal, the creation of a new administrative agency to address the pervasive issues arising from applying fair use to teaching. Simon adeptly summarizes how educators and their students have come to reside in a world chilled by fear of retribution for using materials in teaching and in creating products of learning. This chilling effect, he states, is due in large part to the pseudo-law status that courts have bestowed upon the Classroom Guidelines found in the House Report accompanying the 1976 Copyright Act. These guidelines, though drafted with the intent of establishing minimum standards for fair use, have been treated by courts in landmark decisions such as the Kinko’s and Michigan Document Services cases as having the force and effect of law. As a result, many educational institutions and those teaching at them have either come to harshly restrict or altogether avoid the use of copyrighted works or have adopted the policy of secretly engaging in overly liberal application of fair use and encouraged and induced infringement by teachers and students.
As Simon notes, he is not the first author to propose a solution to this complex result. Most notably, he gives a fair and thorough review of the Code of Best Practices movement. He states that the Codes, like the Guidelines, do not apply to all situations, and users may overlook fair uses that apply to factual circumstances not addressed in the Codes. Further, he cautions that the Codes, again like the Guidelines, risk being treated as having the force and effect of law when in fact they do not. Finally, and most compelling, he acknowledges that, at present, the Codes of Best Practices have been authored at the initiative of a single entity; however, what should happen if other groups or organizations propose codes? How can educators know what code is best suited to their needs or is most consistent with the law? Another solution proposed by several scholars is the creation of an agency to adjudicate fair use challenges and promulgate regulations related to the application of the fair use test. Simon specifically examines the proposal of Professor Jason Mazzone to create an EEOC-like agency. While Simon agrees with the creation of an administrative agency, he fears that one similar to the EEOC would impose a significant burden on educational institutions, including financial (filing fees) and reputational (educators cast as “bad guy”) costs.
Instead, Simon proposes creation of an executive agency similar to the Copyright Royalty Board, which he calls the Copyright Regulatory Administrative Body (“CRAB”). Simon spends a great deal of time defining the structure and function of CRAB and how it would regulate educational fair use. He proposes that CRAB engage in notice and comment rulemaking rather than negotiated rulemaking in order to avoid the outcome of the Ad Hoc Committee that drafted the Classroom Guidelines. In addition to rulemaking, the CRAB would have adjudicatory powers coupled with investigatory power which he likens to the function of the Federal Trade Commission. Simon anticipates criticisms to his proposal and does his best to preemptively refute them. However, I am more persuaded by his description of the criticisms than by his refutations of them. Particularly, I think the criticism that CRAB would be unnecessarily costly and create greater uncertainty on account of the technical and confusing nature of agency regulations. I also think that it shifts the responsibility of interpretation and application of fair use from the courts to an after-thought agency. I also disagree with the creation of an agency that only applies to educational fair use. While I do not disagree with Simon’s argument that education is highly valued in our society and experiences unique situations with respect to fair use, I do not believe that creation of a governmental entity solely for the purpose of determining fair use application in an educational setting is warranted. Fair use has important application in many non-educational circumstances as well, and a governmentally sanctioned and funded body cannot feasibly, and should not, be created for each group of users who can claim fair use.