Home -> Law Blog Directory -> Intellectual Property Law Blogs -> ©ollectanea

Intellectual Property Law

: ©ollectanea

Educational fair use: a provocation

By Georgia Harper

Some years ago, I was in a meeting with a high IP official of a certain political administration (neither of which will be named here), discussing exceptions to copyright law and trying to make the point that these were critical to the mission of secondary and higher education, which were (even then) cash-strapped. The unnamed official had a simple response to this argument, which ran (in effect) like this: These days, education is big business, and a big market for copyrighted material. If copyright licenses cost to much, the right answer isn't to impose costs on copyright owners but to go back to education funders and ask for additional appropriations to cover rights clearances. Somehow, this line didn't seem right then, and it doesn't seem right now. But the argument may be a bit more difficult to counter than some educators believe (or hope). It is, however, important that we prepare to do so, as we gird for a struggle over the future of educational fair use. I put my focus on fair use here because--at least for now--the promise of educational (and education-related) special exceptions to copyright seems limited, as evidenced by the disappointments of the TEACH Act and the becalmed state of the process designed to update Section 108. In the foreseeable future, then, fair use--that marvelous catch-all copyright exception--may be the best hope. Educators are entering an era in which the copyright fair use doctrine will be of more importance to us than ever before in its 168-year history. A myriad of questions confront us to which fair use may be at least a partial answer, such as:

• How can students use copyright materials in creating class projects?
• What can students and teachers do with such projects once they have been created?
• What rules apply to quoting copyrighted material in electronic course materials?
• To what extent can teachers take advantage of the potential for e-reserves?
• And many more!

Our communities have strong views on at least some of these questions, as evidenced, for example, by last Fall's Code of Best Practices for Fair Use in Media Literacy Education, which it was my pleasure to help facilitate, or the forthcoming fair use statement from the Society for Cinema and Media Studies. It's crucial that positions like these should be defined as fully and quickly as possible by educators, lest someone else gets to frame the conversation--as publishers are attempting to do in their e-reserves lawsuit against Georgia State (read the complaint here). The challenge that educators face, of course, is the curious dearth of case law interpreting the fair use doctrine where core educational functions are concerned--and by "core" I don't mean file-sharing by college students or even the production of course packs by for-profit businesses that happen to serve educational facilities. I do mean activities in and around the classroom, the library and (increasingly) the computer lab! And this is where what may either be strength or a weakness in educators' positions lies. In the years since 1841, when Joseph Story first cooked up the fair use doctrine, there have been no decided cases--that's right, no cases!--that address the legal status of core educational functions conducted in and around conventional schools. The closest we come (and it's not very close!) is Encyclopedia Britannica v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982), which stands for the somewhat underwhelming proposition that schools can't invoke fair use to justify a wholesale program of off-air taping for possible future classroom use! Nor does legislative history help out much. Although the deliberations leading up to the 1976 Copyright Act are replete with discussions of the problem of educational photocopying, they don't give us (or the courts) much to work with on the more fundamental question of how strong a privilege core educational functions, in general, should enjoy. Unfortunately, those deliberations did open up a path that ultimately became blind alley for educational fair use--the prospect of "voluntary guidelines"--and in so doing delayed the emergence of a robust discussion of the application of the doctrine in its native form. (This isn't the place to review the guidelines fiasco, even were there anything left to say after the magisterial article by former CIP IP Scholar Kenny Crews, which you can read here.) What should we make of the fact that we just don't have well-articulated statements by judges and legislators about the importance of education to society and the importance of fair use to education? One possibility, of course, is that (like my unnamed official) they actually don't buy this argument. The other--and it seems to me more likely--is that the argument is too self-evident to require much discussion. If so, a possible corollary might be that copyright owners (who generally don't like to lose) have been leery of pushing claims against core educational functions to a decision! Remember, though, this is all supposition--which suggests to me that educators should be reluctant to rely on it too heavily. In that case, what should educators (and those who love them) be doing now to improve their position? Let me make two modest suggestions:

1. First, it's important that educators refrain from claiming too much under the heading of fair use--and, in particular, that they avoid the simple (and erroneous) proposition that merely because a use is educational, it is definitionally fair. True though it is that "education" is named in the preamble to Section 107, that--in itself-- and $3.00 (give or take) will get you a Vanilla Rooibos Tazo® Tea Latte at Starbucks.
2. Second, it is crucial to develop the arguments for treating various kinds of educational use as "transformative." Like it or not, this is the current mantra of fair use jurisprudence, and educators need to recognize this jurisprudential fact and respond accordingly. They need to generate more and better explanations (the fair use code for media literary, referenced above, being one example), of how educational uses don't just repeat quoted material for its original purposes, but both repurpose that material and add value to it. For educators, this proposition may seem transparently obvious. But this isn't necessarily true for the copyright community in general--or the courts in particular.

In future posts, I'll be going into some more detail about the challenges that educators face. But it isn't too soon to begin to think--and talk--about how to meet them.

Full post as published by ©ollectanea on March 30, 2009 (boomark / email).