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Who Owns Copyright in Course Materials?

With classes back in session at most American universities and colleges, students may be looking for note taking or studying shortcuts to ease them through the semester. The sharing of course notes, lecture recordings, and exam copies has become more than a friendly gesture by former students; it has become a growing commercial enterprise by brick and mortar and online entities. A couple years ago the web site Course Hero began to attract scrutiny from teachers and administrators when it offered to students a monthly subscription to access its vast repository of uploaded course materials (or earn credits for access in exchange for uploading their own materials). Secondary to the concerns of academic integrity was the concern that the intellectual property rights of professors had been violated. Many educators are concerned that their original and creative work product, such as stylized lecture slides, detailed course handouts, and well-prepared syllabi, are being made available without their knowledge or permission. Course Hero, by its own admission, does not police content uploaded to its site. Rather it relies, much like You Tube, upon the vigilance of copyright holders to file with the company a take-down request pursuant to the Digital Millennium Copyright Act.  To help counter the problem, universities have adopted policies prohibiting students from sharing course materials or have devised informational sites for faculty to assist them in locating infringing downloads and requesting take-down.

To date, no litigation has arose as a result of Course Hero or sites like it. However, a copyright infringement action is pending in a Florida district court concerning the sharing of course information and may answer the question of whether sharing of course materials actually qualifies as fair use. The lawsuit was filed after the lecture outlines and film study questions prepared by a University of Florida professor were copied and packeted for resale by a local copy shop. The professor had transferred his copyrights in the materials to a publisher, who filed the infringement action. This past June, the district court ruled on the cross motions for summary judgment. Recognizing that the text materials were protected by copyright, the district court denied the plaintiff’s motion for summary judgment on the infringement claims on the ground that questions of fact for a jury existed as to whether the copying constituted fair use. The court wrote:

Works that are original, fictional, and unpublished enjoy more protection than works that are derivative, factual, and published. [The] works as a whole are derivative, factual, and published. Furthermore, his film study questions and practice questions are factual compilations. Copyright protection extends only to the selection and arrangement, not to the underlying facts themselves, and “[t]his inevitably means that the copyright in a factual compilation is thin.” Feist. 499 U.S. at 349…Other factors in determining fair use include the purpose and character of the use, the amount and substantiality of the portion used, and the effect of the use on the market or value of the copyrighted work. 17 U.S.C. § 107. The parties have presented various arguments for and against a finding of fair use. Genuine issues of material fact remain for a jury to determine regarding fair use.

The outcome of this case, much like the outcome in the Georgia State e-reserves lawsuit, has the potential to greatly impact our understanding and application of fair use. It will also impact the validity of sites like Course Hero and any other entity profiting from the sharing of course materials. (Note – the work for hire doctrine is not at issue in this case, even though a university as employer could claim copyright ownership in course materials because the university in the case had already disclaimed any interest in these materials.)

The Devil Went Down to Georgia

Three years in the making, the trial against Georgia State University (GSU) for their e-reserves practices begins tomorrow. The course for trial was set at the end of September when the federal judge presiding over the case ruled on the motions for summary judgment filed by the publishers and GSU officials, allowing the case to go forward solely on the claim of contributory infringement. (For a detailed explanation of those motions please read “Georgia (State University) on My Mind.”) However, in December 2010, the court granted the publishers’ motion for reconsideration and permitted them to proceed on the claim of direct infringement, now understood and correctly labeled as a claim of “indirect infringement.”

In the weeks and days leading up to trial, both sides filed the usual and customary motions concerning evidence and other pre-trial matters. But the most noteworthy, and somewhat nerve-wracking, pre-trial filing came from the publishers in the form of a proposed order to be signed by the judge in the event they win their case. The publishers do not seek monetary damages as the remedy for the alleged infringement; rather, they seek to enjoin GSU (and inevitably all academic libraries, college students, and faculty) from continuing to access copyrighted materials through secure digital means without permission and payment of royalties. The proposed injunction filed by the publishers would prohibit all persons affiliated with GSU, including faculty and students, from reproducing, transmitting, downloading, etc. copyrighted materials without permission or in excess of the Guidelines for Educational Fair Use that accompanied the 1976 adoption of the Copyright Act. Nowhere in the proposed injunction is there any mention of fair use as codified at §107 of the Copyright Act.

The publishers’ insistence of limiting GSU, including its students and faculty,  to outdated and overly-strict guidelines is abhorrent. While I do appreciate the guidance and wisdom of the authors of the 1976 Guidelines and their exposition on the concepts of “brevity” and “spontaneity,” I do not believe that guidelines drafted at a time when only print existed and current digital modes of delivering educational materials were not even imagined should be levied against an institution as the absolute maximums allowed. To do so would completely obliterate the balancing test prescribed by the terms of § 107. As an academic librarian, I appreciate the ease and efficiency offered by adherence to numeric guidelines. However, librarians should strongly advocate against imposition of such strict maximums and lobby loudly for fair use.

Further, I do agree that certain versions of the “fair use checklist” often utilized by academics tend to liberally lean toward a finding of fair use; however, the checklist problem should not be solved through such a drastic measure as removal of fair use as a concept and consideration and adoption of very minimum page and word limits.

What the Kinko’s case did to the use of printed coursepacks, the outcome of the GSU case may very well do to e-reserve practices employed at most institutions of higher education. However, the outcome may not be the simple discontinuation of a certain practice or a slight modification of process; rather, fair use landscape may very well be blighted.

March Madness

March Madness applies not only to the basketball court – but to the court of law as well, as we have seen this month. It has been nearly a month since I last wrote a post – and much has happened since then with respect to copyright law. I apologize for my tardiness in giving these significant events due attention. But my own month of March has been marked by “madness” – including three conference/workshop presentations and, more significantly, preparations for a move across country for a new job as scholarly communications librarian at the University of Florida.

So let’s review what has happened during this very busy March:

Righthaven Lawsuits:  Fair Use – 1, Trolls – 0

Righthaven LLC, organized in 2010 upon acceptance of assignment of copyright ownership in the content of the Las Vegas Review-Journal and other media outlets, has filed over 250 lawsuits against bloggers, web sites, journalists and others for copyright infringement. Prospective defendants are identified through a tactic referred to as “trolling,” whereby Righthaven allegedly searches the Internet for use of content and then seeks assignment of copyright and sues for infringement. Many of the lawsuits stem from the copying of a single image or the quoting of a sentence or two of copyrighted content.  However, in one lawsuit, Righthaven claimed a non-profit immigrant rights organization committed infringement when it republished the full text of a Review-Journal article on immigration. That lawsuit came to a conclusion this month after a trial judge ruled that the use by the NPO was in fact a fair use. Upon reviewing the four factors of fair use, the judge determined that there was no effect upon the market (Factor Four). Righthaven did not assert any effect upon the Review-Journal’s ability to report the news; rather, the copyright was relied upon solely as a basis for the lawsuit. Further, there was essentially no overlap between the NPO’s audience and that of the newspaper.  Finally, the use of the article was for informational purposes and fit squarely within the NPO’s educational mission (Factor One). For a complete history of the Righthaven lawsuits, visit http://www.righthavenlawsuits.com/.

Full Court Press: Second Motion to Dismiss Filed in AIME v. UCLA

Following the filing of UCLA’s motion to dismiss in the copyright infringement action against it in January, plaintiff AIME amended its complaint. The amended complaint alleges additional facts in an attempt to support the initial and added claims against a now expanded list of defendants. A second motion to dismiss was filed by the UCLA defendants this month. In this motion, much like the first, UCLA renews its claim to immunity under the Eleventh Amendment. UCLA challenges AIME’s contention in the amended complaint that immunity was waived by the University’s assent to the license agreement. And, as previously discussed here, the contract vs. copyright claims remain to be at issue in the amended complaint and follow-up motion to dismiss. This case continues to be one to watch.

Review by the Ref: Certiorari Granted in Golan v. Holder

In 1994, in an attempt to bring federal law into compliance with the Berne Convention, Congress enacted legislation, under authority of the “Copyright Clause,” extending copyright protection to thousands of foreign works that were still considered copyrighted in their countries of origin) but had long been considered part of the U.S. public domain.  Many creative works, such as symphonies and films, that had been treated for decades as being in the public domain and as such had been performed, adapted, distributed and restored, were now protected by copyright. In an action brought by representatives of composers and film distributors, it was alleged that this retroactive extension of copyright protection to works previously treated as out-of-copyright was not only not within Congress’s power under the Copyright Clause but was also a violation of the petitioners’ First Amendment rights. The claims were rejected by the 10th Circuit, but this month, despite the government’s plea to refrain, the Supreme Court granted cert to hear the case. The outcome of this case has significant copyright implications because, as the petition for review argued, “if Congress is free to restore material from the public domain at will, then the public’s federal right to copy and to use public domain material this Court has recognized may evaporate at any time.”

Slam Dunk: Rejection of the Google Books Settlement Agreement

In the several days since, and surely in the days and weeks to come, librarians, attorneys, authors, and scholars will be debating the probable effects of the court’s sweeping rejection of the settlement agreement initially drafted in the Google Books litigation three years ago. Following months of wrangling and amending, the latest iteration of the agreement was rejected in totality last week by the federal court presiding over the case. In his opinion, Judge Denny Chin rejected the settlement agreement primarily on the ground that the major issues, namely the status of orphan works and the rights of foreign authors and publishers, were ones that were better resolved by Congress than a federal court. In particular, the orphan works problem is so amorphous that it cannot be adequately served by a settlement agreement between a possibly inadequate class of plaintiffs and a private entity. Moving forward, of concern to universities that had been participants in the Google Books mass digitization project is potential liability. While I do not foresee a rash of lawsuits or outrage for this noble effort to make works searchable and accessible by the public, it will be very interesting to see what develops in the weeks ahead.

Jump Ball: Trial Date Set in Georgia State University E-Reserves Case

In late September 2010, the judge in the copyright infringement action filed against GSU considered a motion for summary judgment filed by the University and the publishers who filed the action. In her ruling on that motion, she permitted the case to go forward on the issue of contributory infringement. Last week, the judge denied the University motion to dismiss the remaining claim, thereby setting the matter for trial, which is to commence May 16th. The hope is that this case will finally resolve some contentious issues regarding the bounds of fair use, particularly in this context of educational use of copyrighted materials online in electronic reserve or course management systems.

Scholasticus: On streaming video

May a faculty member who is teaching online digitize and stream documentary and Hollywood produced films in their entirety in order to illustrate a theme being covered in that class?

Earlier this week, I gave a presentation at Electronic Resources & Libraries on the rise in demand at colleges and universities for streamed video and how libraries can best address this need on the part of teaching faculty. Part of my discussion addressed the challenges copyright compliance presents in meeting this need. The Copyright Act at §110(1) addresses the performance of films in a face to face classroom. The TEACH Act amendment to the Copyright Act, codified at § 110(2), permits the performance of a reasonable and limited portion of films in an online classroom. And then there is still the application of fair use in the event the requirements of TEACH are not met. Oh, and let’s not forget, there is the DMCA, prohibiting the circumvention of technological prevention measures (TPM) on DVDs and other media for the purpose of copying and distributing their content. Thus, what may a professor do?

Digitizing and streaming an entire DVD is likely not permissible. Recently, an exemption under the DMCA was expanded to permit faculty of any discipline (as opposed to the previous extension to only film studies professors) to circumvent TPM in order to make clips of films for use in teaching and research. Under TEACH, there is the express limitation on quantity, and it is unlikely that an argument can be made that an entire film constitutes a reasonable and limited portion. In the Congressional Research Report prepared in connection with TEACH, it is stated:

Although what constitutes a “reasonable and limited portion” of a work is not defined in the statute, the legislative history of the Act suggests that determining what amount is permissible should take into account the nature of the market for that type of work and the instructional purposes of the performance. For example, the exhibition of an entire film may possibly constitute a “reasonable and limited” demonstration if the film’s entire viewing is exceedingly relevant toward achieving a educational goal; however, the likelihood of an entire film portrayal being “reasonable and limited” may be rare. [emphasis added]

A fair use argument for streaming an entire film also is flawed. Factors two and three weigh against fair use given the creative nature of film making and the quantity used.  Recently, it has been suggested that because the purpose of the use is for other than entertainment, that it is transformative and under factor one fair use is favored. Whether there is a substantial effect on the market under factor four has been raised as an issue in the complaint against UCLA.

But faculty are not without alternatives should streaming an entire film not be permissible under current copyright law. There are many sources for streaming video content available that students can access on their own. For instance, the subscription service Netflix offers thousands of documentaries and mainstream film titles on a streaming basis for an affordable monthly fee that most students likely already pay. Additionally, sites like Amazon and iTunes offer inexpensive streaming video rental. Further, many commercial distributors of films offer licensing of streaming content, although the cost varies across vendors and is dependent upon a variety of factors.

Risky Business

When one considers the application of the principles of “risk management,” industries such as health care, engineering, or financial services come to mind first. However, the way in which an educational institution addresses copyright issues arising on campus, whether it be in the classroom, in the library, or on its network, can also benefit from the principles of risk management. An organized approach that involves a variety of stakeholders from across a university, that includes the development of a copyright literacy program, and that incorporates thoughtful policy drafting, positions an institution for success not only in avoiding infringement claims but also in maximizing the fair use rights of information users.

The principles of risk management as used by those industries named above can be found at the International Standards Organization (ISO) 31000. ISO 31000 enumerates eleven principles of risk management, which are listed below. Beside each principle, I have discussed how implementation of a risk management plan can work toward assuring the protection of not only the rights of copyright owners but also the rights of faculty and students as users of copyrighted works.

Principle 1: Risk management creates and protects value.
The owners of copyrighted works and the users of those works in the creation of new scholarship and culture have valuable interests at stake in the implementation of a copyright management policy at a university. Creators invest time and resources into the creation of the original work, and in return for this, the Copyright Act vests in them certain exclusive rights. Consumers of information, particularly in education, value access to these works to not only increase their own knowledge but also to enable them to expand the field of knowledge through the creation of new works. A comprehensive risk management plan protects these valuable interests by educating faculty and students about their own rights as authors or creators of works and how they can best protect those rights and about how they can benefit from the copyright law’s provisions for use of works in an educational context.

Principles 2 & 3: Risk management is an integral part of the organizational procedure and is part of decision making.
For many on a university campus, copyright is a daily consideration. For libraries, copyright issues arise in a multitude of contexts – from reserve and inter-library loan request processing to database license negotiation. For those working in information technology, copyright arises when streaming copyrighted content or when addressing infringement claims levied against students. A university can assist its staff of service providers by implementing a copyright risk management plan that ensures they all possess the same understanding of the law and defines what their responsibilities are to ensure institutional compliance. Such a plan promotes efficient and effective decision making.

Principles 4 – 7: Risk management explicitly addresses uncertainty; is systematic, structured and timely; is based on the best available information; and is tailored.
With the development of technology outpacing the enactment of law, a complicated and confusing situation concerning copyright in academia has evolved. Monitoring judicial response and scholarly exposition on academic copyright constitutes a full time job best filled by someone with the knowledge and experience to understand the changing environment and communicate these changes intelligibly and effectively to the university’s community of teachers, researchers, and students. An educational institution’s best course for managing copyright is employment of someone in this role who can read and understand the law, who appreciates the needs of the academic community, and who knows how to balance the interests involved in managing copyright.

Principle 8: Risk management takes human and cultural factors into account
Without human participation, we cannot have culture. And without fair use and other exemptions available to those in an academic community, continued creation of culture is stymied. As Lawrence Lessig, lawyer, professor, and avid copyright freedom proponent, stated in his book Free Culture:  “As we’ve seen, our constitutional system requires limits on copyright as a way to assure that copyright holders do not too heavily influence the development and distribution of our culture.” A risk management approach to copyright management promotes the need for human participation in the creation of new culture and helps assure that faculty and student scholars can continue to develop and distribute new works of knowledge.

Principle 9: Risk management is transparent and inclusive
An effective copyright management program on a university campus requires the participation of a variety of stakeholders: faculty, library staff, IT professionals, conference services staff, and marketing staff. By including representatives from various interest groups on campus, there is a greater likelihood of creating a unified understanding of copyright and fair use; in effect, all the team members are using the same playbook. Further, by involving various interested parties and charging them with the task of managing copyright on campus through education and cooperation, administration exhibits a commitment to being transparent in its policy-making.

Principle 10: Risk management is dynamic, iterative and responsive to change
As stated in Principles 4-7, understanding of the application and effect of copyright law in an environment of ever-changing technology and pedagogical delivery modes requires the full time commitment of an individual or dedicated staff. This approach to copyright management allows for an adaptive and timely response to developments in the law.

Principle 11: Risk management facilitates continual improvement and enhancement of the organization
Higher education enjoys a unique place in copyright jurisprudence. Copyright law has been tested and adapted to the needs of those in education. The work for hire doctrine has been tested in cases concerning instructional materials, the bounds of fair use have been defined through litigation concerning course packs, and now the TEACH Act and the DMCA are being considered more thoroughly in cases concerning online delivery of content to students. Given higher education’s place in the history of copyright law, it stands in a strong position to further define and expand the law for the betterment of not only the institution but for all citizens. Through the continued support of open access, testing of fair use, and push for exemptions for use of digital media in teaching, higher education will be an effective actor in the valiant effort to share knowledge.

Immunity, Contracts and Copyright: An update on AIME vs UCLA

A little more than a month after being sued for copyright infringement, UCLA has responded with a motion to dismiss the action on the grounds the court lacks subject matter jurisdiction by virtue of the Eleventh Amendment’s grant of immunity to UCLA’s Board of Regents and chancellor and for failing to state a claim against any named individual who was personally responsible for the alleged infringement. UCLA’s attorneys also claim that neither AIME nor Ambrose video have standing to sue and that certain of their state law claims are preempted.

Eleventh Amendment jurisprudence has a long and complex history. Generally, under the 11th Amendment, and in the absence of a State’s consent or waiver or Congressional abrogation, a State may not be sued in a federal court. For purposes of the 11th Amendment, the term “State” includes not just the State in name, but also its agencies and, in some narrowly defined instances, its officials. Here, UCLA contends that the State of California has not consented to suit and Congress has not acted to abrogate immunity in actions under the Copyright Act. As such, the Board of Regents and Chancellor enjoy 11th Amendment immunity as State actors in their official capacities. The unfortunate situation of States and their legal entities escaping liability for copyright infringement has been debated for years, most notably in 2000 when the Register of Copyrights requested Congress to seriously consider the implications of extending immunity to States in actions involving intellectual property.  (See also GAO Report on State Immunity in Infringement Actions.) Because higher education has been the target in recent legislation concerning protection of intellectual property, I am not convinced that abrogation of immunity would be the best solution to this situation. The TEACH Act, the DMCA,  and the HEOA, for example, impose stringent limitations on educational institutions aimed at preventing infringement by their employees and students. Failure to comply with the requirements of these acts pose sufficient burdens upon universities without opening them up to litigation. For further discussion on immunity and academic institutions, read this short piece from Information Today.

UCLA’s attorneys contend that AIME lacks constitutional standing to file suit because it is not the owner of any of the copyrights alleged to have been infringed.  Further, AIME has not satisfied the requirements of demonstrating it could bring a lawsuit on behalf of its members, including Ambrose Video. The crux of UCLA’s argument rests upon a failure of the complaint to allege sufficient facts to support standing. I do think, however, that a properly drafted complaint could support AIME’s claim it has standing to represent its members. If this was the singular ground upon which dismissal was sought, I would hope the court would grant the right to amend the complaint. However, the immunity claim is meritorious enough that an amendment may not save the suit.

Finally, the motion for dismissal contends that the claims of AIME and Ambrose Video are preempted because they are grounded in state contract law. In the complaint, AIME and Ambrose state nearly identical claims under both the Copyright Act and state contract law. In the event the federal Copyright Act claims are dismissed on immunity or other grounds, UCLA argues, the state law claims cannot go forward because they are preempted by the Copyright Act. The contract giving rise to these claims is the license agreement entered into between Ambrose Video and UCLA when UCLA purchased DVDs from Ambrose. Under the terms of the license agreement, UCLA was prohibited from duplicating and broadcasting the content on the DVDs. UCLA contends, quote novelly, that this prohibition addresses conduct that is also addressed in the Copyright Act and as such is preempted. As Duke University’s Kevin Smith aptly notes, this argument has the potential of changing the way universities, and more notably their libraries, do business with providers of licensed content. If contracts that seek to control conduct that is otherwise covered by fair use or other provisions of the Copyright Act are preempted, the negotiation and effect of license agreements will radically change, perhaps for the better for libraries and their patrons.

Feeling CRABby about Fair Use

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.

The Message or the Messenger?

The Copyright Clearance Center (CCC) released today a brief marketing video advertising its annual copyright license for academic institutions. By paying for the license, institutions have “ready and easy” access to copyrighted materials covered by the license for use in coursepacks, e-reserves, and course management systems.  There is no mention of how paying for this license includes paying for uses that would otherwise not require permission.  Last week, a colleague at another institution directed my attention to another recently posted video on CCC’s site; this video is targeted, in a rather creative and humorous way, toward faculty and students. The video presents the black letter of the law, including a brief explanation of fair use, but with a subtle overtone of fear and guilt for using an author’s work without compensation. Notably, there is no indication or mention of how CCC is funding the lawsuit against Georgia State University for copyright infringement.

Ironically, another “Code of Best Practices in Fair Use” was released today by the Center for Social Media. This latest Code is for poets; previously, the Center produced codes of best practices for documentary film makers, online video creators, and dance performers.  A Code for academic librarians, prepared by the Center and the Association of Research Libraries, is currently being researched and drafted.  The general sentiment of these Codes is the promotion of the liberal use of copyrighted materials without permission or compensation; the creation of new culture preferred over compensation for owners. Further, the Codes are offered as an alternative to the oft-criticized guidelines put forth by Congress and others. However, as I’ve posed previously, the choice of a Code or Guidelines is more a matter of semantics than valid and binding interpretation. A similar issue concerning copyright and the interpretation by users and owners persists in Canada.  The public comment period for Bill C-32, which reforms Canada’s copyright law to expand and clarify fair dealing for education, will soon conclude. The state of the Tariff on Secondary Education remains in limbo. On one side of these issues is Access Copyright, an organization like CCC, whose business is to sell annual licenses to academic institutions; on the other, institutions, faculty and students championing free and liberal use. While Access Copyright is not currently funding any litigation, it is the primary author and proponent of the tariff; it is also a vocal objector to C-32.

In both cases, I do not fully support one side or the other. Behind each message is a messenger with motives, which I may or may not agree with. Of course, in practice, standing in the middle and maintaining an unbiased and objective stance is challenging, particularly when dealing on a daily basis with persons representing the viewpoints on both sides of the fair use vs. fair compensation question. But until the message I hear is one from a legislative or judicial messenger, that is where I will remain standing.

World’s Fair Use Day: A call for optimism

Tomorrow, January 13, is the second annual World’s Fair Use Day. Sponsored primarily by Public Knowledge, the free event, held in Washington D.C., features keynote speakers and panels of creators, innovators and policy makers presenting on the topic of fair use. The goal of the event is to educate the public on how fair use encourages creative use of copyrighted materials and contributes to our culture. Ironically, this celebration of creativity comes a day after the settlement and dismissal of the Shepard Fairey/A.P. copyright infringement action. And while the folks in Washington D.C. congregate to discuss and share the wonders of fair use, I remain in a state of wonder about what the future of fair use is with copyright infringement litigation pending against universities in Georgia and California and groups like Righthaven expanding their attack against those exercising fair use rights. So it surprised me when an article expressing “optimism” about fair use crossed my desk this week.

In the most recent issue of the Journal of the Copyright Society of the USA (57 J. Copyright Soc’y USA 351 (2010)), University of Pittsburgh law professor Michael Madison explains why he sees hope for fair use through the development and implementation of codes of best practices. Professor Madison, as I did in a recent post, recognizes that such codes are a “second best” solution to actual law reform; however, a collective, or as Madison calls an “institutional,” response is more apt to stabilize and strengthen the meaning and application of fair use than ttesting it by individual or case-by-case bases. Madison compares the state of fair use law to that of free speech, drawing convincing analogies between the two. He explains that the right of free speech was compromised by treatment as an individual liberty but the coinage by Justice Oliver Wendell Holmes Jr. of the “marketplace of ideas” within the doctrine of free expression shifted thinking to an institutional framework and put the right of individuals on more solid ground. Madison believes the same outcome will work for fair use.

Copyright law, he states, treats everyone as an author. However, this individual right stands beside powerful institutions, such as publishers and distributors.  In order to “level the playing field,” an institutional response should be adopted. And a code of best practices, he argues, is an appropriate institutional response. But this does not mean the right of individual creators is disregarded. He states:

In emphasizing the normative benefits of institutions in copyright generally and in fair use in particular, I do not lose sight of the fact that the doctrinal question is whether an individual instance of reproducing or distributing a work of authorship should be treated as “fair use” or “unfair use.”  For a code of best practices, the question is not merely the existence of the practice but whether the individual user is operating within it – that is, whether the individual is honoring the code.

In his final argument in favor of a best practices code, Professor Madison turns to the best practices code adopted for documentary filmmakers, which was produced by the same group that is currently drafting a best practices code for academic and research librarians. The documentary filmmaker’s code “generated related institutional change” that in turn increased the distribution of knowledge, which is one of the goals of copyright law.

In conclusion, Madison explores the critiques of best practice codes. The primary of which is that it does not effectuate real law reform, which is the best possible remedy. He also points out that private groups do not have authority to appropriate for itself the power to decide what “is” or “is not” fair use in any context as this is the sole authority of lawmakers and courts. However, by documenting these agreed-to understanding of the law a persuasive argument is made upon which the makers and interpreters of law can rely when the time for reform finally comes.

Is a Code of Best Practices Enough?

Just before the holidays, a team of investigators featuring representatives of the Association of Research Libraries (ARL), the Center for Social Media, and the Program on Information Justice and Intellectual Property (PIJIP) released a report detailing the results of Phase One of their progress toward drafting an academic and research librarians’ code of best practices for interpreting and applying copyright doctrine. These same individuals have previously collaborated on best practice codes for media literacy educators and for documentary filmmakers. Phase One of their research for development of this particular code of best practices entailed interviewing sixty-five librarians. Interviewees were asked about their personal understanding as well as their institutions’ policies and practices with respect to fair use and other exemptions under copyright law. The report summarizes the responses in five categories of librarianship practice: support for teaching and learning, support for scholarship, preservation, exhibition and public outreach, and serving disabled communities. Not surprisingly, the responses greatly vary, which accurately reflects the present (mis)understanding of fair use across academia. Most respondents expressed a lack of institutional support, namely time and expertise from legal counsel offices, and an increasing demand from faculty and researchers for fair use determinations. Without ready and well-versed support from administration, and a fear of retribution levied by publishers of content, librarians have, as concluded by the investigative team, clung to outdated guidelines, hesitated to employ fair use to the fullest, and failed to promote access to information, which is the librarians’ duty and charge.

At the end of the report, the investigators offer a list of suggestions aimed toward improving the situation that academic and research librarians find themselves in. Naturally, the first suggestion is the adoption and employment of the code of best practices, which the team aims to publicly disseminate by 2012. Assumedly, this Code of Best Practices will replace the outmoded guidelines that most libraries still use in one modified form or another. The remaining suggestions address the issues with institutional support and publisher threat. Institutional support, the investigators propose, should take the form of the creation of a dedicated copyright office in the Library or through the campus legal office. Publisher threat should be addressed at the time of license negotiation. While these suggestions are all material and useful, their are not novel or unheard of. A Code of Best Practices is a collective understanding of how fair use applies — same as the outdated CONTU guidelines, which are still used in one modified form or another, and other organizationally prepared suggestions (e.g. ALA, CCC, AAUP) for application of fair use in libraries. The Code of Best Practices may be a statement of the currently agreed-to understanding by librarians as to the application of fair use but what still lacks is a judicial or legislative clarification of fair use as applied to the ever-evolving  modes of publishing and content delivery. Institutional buy-in is also universally desired and needed. However, as long as libraries are viewed by administrations as a cost center rather than as an asset to be supported and supplied, devotion of resources to development of copyright offices or dedicated personnel will not come easily.

I applaud the work of the investigative team. I have had the pleasure of being taught by two of its members. I look forward to the completion and publication of the Code of Best Practices. However, I do not feel that this will be the answer that we in the field are needing. Faculty and students need to be encouraged to become copyright aware. The requirement of the HEOA that universities distribute to students copyright information targeted toward anti-piracy is one way that this tactic is in force. Department chairs and deans should invite librarians or campus counsel to departmental or college meetings to discuss copyright and fair use. Faculty should assume greater responsibility for making fair use determinations and work in greater concert with librarians. As one of the interviewees stated, faculty have a greater understanding of their educational goals and curriculum. Administrative or institutional support is important; however, education and responsibilities amongst faculty and students are also key.

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