NUL Copyright

Educational fair use today

The Association of Research Libraries has released a new paper on educational fair use.

Jonathan Band offers a reflection on fair use, focusing on three recent fair use decisions:

This paper will not offer a comprehensive analysis of the current state of fair use in the educational context. Instead, it will discuss three recent fair use decisions by federal circuit courts. These decisions demonstrate that fair use pessimism, especially in the educational context, is ill founded. In all three cases, the courts found commercial uses to be fair. In two of the three cases, the defendants copied several of the plaintiffs' works in their entirety, and only changed them by reducing them in size.

Dec. 13 hearing on the "Pro-IP" act

The House Subcommittee on Courts, the Internet and Intellectual property is holding a hearing tomorrow, Dec. 13, on H.R. 4279, the "Prioritizing Resources and Organization for Intellectual Property Act of 2007" or "PRO-IP" act. It should be live webcast.

This bill will dramatically increase the amount that can be sought as statutory damages, and creates a new forfeiture provision for property used or intended to be used for copyright infringement.

William Patry has an extended post up about these two provisions of the bill; here is an excerpt:

Under the bill, there may be 25 [statutory damage awards]: there would be 12 for each track on the sound recording, 1 for the sound recording as a whole, and 12 for each musical composition. Under this approach, for one CD the minimum award for non-innocent infringement must be $18,750, for a CD that sells in some stores at an inflated price of $18.99 and may be had for much less from amazon.com or iTunes. The maximum amount of $150,000 then becomes three million, seven hundred and fifty thousand dollars per CD.

Hirtle on The Gentleman's Agreement of 1935

Peter Hirtle, Intellectual Property Officer for the Cornell University Libraries, published a wonderful article back in March of 2006: Research, Libraries, and Fair Use: The Gentlemen's Agreement of 1935.

I can't recommend this highly enough, it's a great read, a truly fascinating history of the development of an early set of copying guidelines. Anyone who's ever ground their teeth about the "ten percent rule," or wondered how on earth we got ourselves into this strange situation where faculty can't use more than one article per issue per class will be interested in this blow-by-blow account of Robert C. Binkley's campaign to simplify the rules of copying for scholars and harness new reprographic technologies to dramatically increase access to new research.

Binkley recruited Harry Lydenberg, then Director of the New York Public Library, to be the primary negotiator for the American Council of Learned Societies and the Social Science Research Council's Joint Committee on Materials for Research:

"Because of his position, he was in frequent communications with major figures in the New York publishing houses. As Binkley would write to Lydenberg, 'I feel it is a godsend that you should be the man who presents this problem to the publishers.' In retrospect, however, the decision to assign Lydenberg the task of approaching the publishers subtly altered the nature of the discussions. First, the New York Public Library is not directly associated with an educational institution. Lydenberg, therefore, had no experience with how reproductions were being used in teaching and the classroom. In this, Lydenberg's ignorance reinforced Binkley's own bias against including educational use of reproductions in the discussions of the Joint Committee; educational use of materials did not matter to either man."(Hirtle, p.20)

Preprint available via Cornell's DSpace site, article was due to have been published in a 2006 issue of the Journal of the Copyright Society of the U.S.A.., though I haven't yet had a chance to verify the cite and exact issue. This journal isn't published electronically but is available in print at NU's law library. Also well worth a visit is Hirtle's recently revised chart, "Copyright Term and the Public Domain in the United States."

A new approach to copyright for visual images

A colleague at the University of Chicago drew my attention to this article in the November/December 2007 issue of the EDUCAUSE Review: Sharing Visual Arts Images for Educational Use: Finding a New Angle of Repose.

Gretchen Wagner, General Counsel at ARTstor, provides some historical background on copyright and its tendency to describe norms (notice of copyright, registration, rules about copying and distribution) that make sense for textual works but do not translate well to visual works. As for clearing rights, "As one report estimated in 1997, the average slide librarian would need forty years to obtain permissions for a single year's worth of acquisitions at a mid-sized university (6,000 images)." Most visual resources collections, therefore, rely heavily on fair use (Section 107 of U.S. Copyright Law) to justify building large local collections of images (analog or digital) without seeking permission from the copyright holder. Fair use is what's known as an affirmative defense: it acknowledges that the work is being used without the copyright holder's permission. The only way to know for certain if the use satisfies the test for fair use exemption is to successfully use it as a defense in a lawsuit, an expensive and distressing experience for any not-for-profit educational institution, regardless of the outcome. As a result, most visual media collections are built to be campus-restricted or even department-restricted resources:

Wagner: "Digital technologies have required educational institutions to embrace a number of changes in how they supply images to their users for teaching. But in some fundamental respects, these teaching collections are being built and made available to users much as they were a century ago. In particular, colleges and universities are continuing to build collections to meet the needs of their own users without regard to the images that are being amassed by other institutions. By assembling these collections in isolation, colleges and universities are choosing not to take advantage of one of the greatest aspects of digital technologies: the ability to share."