Fair Use: TEL Principles and Practice
Napster, Kazaa, Grokster, RIAA, Disney; all of these magic words tend to cause college administrators to perspire, maybe even break out into a heavy sweat. Nearly twenty years ago the magic words that produced similar reactions and anxiety were Kinko's, Michigan Documents, and Texaco. Yet here we are still confronting the content industry's effort to expand controls on access to and use of copyrighted intellectual property (IP) with the same legal defense, fair use, as set forth in Title 17 U.S.C. section 107. Today's challenges to fair use come not from amendments to section 107 but rather from new legislation that places technological barriers to access preeminently in front of fair use. That is, regardless of the public's right to access or use copyrighted information, technology used to control access or use now stands between fair use rights and the content. Recent legislation like the Digital Millennium Copyright Act (DMCA) with its anti-circumvention provisions, making it illegal to "rip" CDs, DVDs, or other digital media packaged inside some access controlling encryption, do an end-around section 107 by avoiding copyright altogether: the crime now is circumventing the technological control measure.
Marketing strategies too tend to evade provisions of copyright law. When licensing copyrighted content, publishers and other IP owners avoid the provisions of section 107 simply because the terms of the contract, the license, take precedence over statute. Technological Protection Measures (TPM) combined with licensing create a formidable barrier to some of the non-commercial, educational uses that we in the academic community think of as traditionally allowable under fair use. The power of hot button issues like P2P file sharing is to galvanize the public's perception that any and all unauthorized use of copyrighted content is piracy. With its tightening of controls on copyrighted content, the entertainment industry, wittingly or not, has upset the balance which copyright law seeks to maintain between private interest and the public good.
Restoring and maintaining copyright law's balance between the competing interests of content owners and the public interest in advancing human understanding is the subject of controversy and continuing debate in academia. Using technology to deliver copyrighted content as the subject matter of course instruction and research involves careful attention to the law and detailed analysis of the circumstances surrounding each and every instance of use. Faculty members and other instructors who teach in technology-enhanced learning environments in particular need to become familiar with this debate and the controversy, but understanding the issues is an institutional responsibility that we all share. Only by doing so can the University community ensure effective policy development and responsible compliance with the law.
Seminar
Please join us at the next TEL seminar:
December 7, 200412:00-1:30 p.m.
402 Walter Library
The moderator and panelists below will discuss these issues from the perspectives of policy development and best practices.
Moderator:
Dan Donnelly
University Libraries/University Libraries' Copyright Information and Education Initiative, Twin Cities campus
Panelists:
John Butler
University Libraries/University Libraries' Copyright Information and Education Initiative, Twin Cities campus
Saundra Martell
Office of the General Counsel, Twin Cities campus
Jessica Reyman
Department of Rhetoric and University Libraries/University Libraries' Copyright Information and Education Initiative, Twin Cities campus
Lois Williams
Copyright Permissions Center, Twin Cities campus
Campus Projects
In June 2004 the University Libraries launched the Copyright Information and Education Initiative to promote responsible compliance with copyright law within the University community. The initiative fosters coordination of copyright and fair use information resources on the Twin Cities campus. By connecting campus specialists with one another, it is building a network of expertise that can help assure the development of best practices and policies consistent with our institutional reponsibilities regarding copyright.
In September 2004, the University Libraries also began implementing new fair use standards related to library support of campus teaching and research efforts. The new standards take a statute-based, rather than guidelines-based, approach to fair use. Now, the libraries' primary user community (students and faculty and staff members) is expected to evaluate the four fair use factors (purpose, nature of the work, amount used, and market effects) whenever a library-mediated use of copyrighted materials is made on the basis of a fair use assertion.
The initiative also sponsors educational and informational programming on the Twin Cities campus. It will sponsor a morning half-day seminar on fair use on January 28, 2005 that will be led by Professor Kenneth D. Crews, J.D., Ph.D., director of the Copyright Management Center, Indiana University-Purdue University, Indianapolis. Details will be published on this page as they become available.
The initiative welcomes opportunities to partner with members of all communities of shared interest. If you would like to learn more, contact Dan Donnelly at 612-624-6536 or d-donn@umn.edu.
Preliminary Readings
Bartow, Ann. Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely. 60 U. Pitt. L. Rev. 149 (1998). http://web.lexis-nexis.com/universe/.
An advocacy view of educational fair use is presented in this article. The author expands the discussion to include issues surrounding authors' interests in the publication of their own original articles in academic journals.
Colbert, Sephana I., and Oren R. Griffin. The Impact of "Fair Use" in the Higher Education Community: A Necessary Exception? 62 Alb. L. Rev. 437, 1998. http://web.lexis-nexis.com/universe/.
This is a cautionary analysis of the educational fair use defense used in several celebrated court cases such as Basic Books, Inc. v. Kinkos Graphics and Princeton University Press v. Michigan Document Services, Inc. The article concludes that educational institutions need to take a proactive stance on fair use to take full advantage of it to support teaching and research.
Crews, Kenneth D.. "New Copyright Law for Distance Education: The Meaning and Importance of the TEACH Act." American Library Association, Sept. 30, 2002. http://www.ala.org/washoff/teach.html.
The TEACH Act presents both opportunities and responsibilities to the education community. Applying its provisions in technology-enhanced learning environments will be confusing at times. This article describes the main advantages of the act and reminds the reader that fair use, section 107 of copyright law, interacts with TEACH. At times section 107 may allow uses beyond the provisions of TEACH.
