Intellectual property

Academics potentially enjoy some of the greatest benefits of U.S. copyright law’s doctrine of fair use — which lets them use copyrighted material without permission or payment, under some circumstances. Now if only they knew they did. In Peter Jaszi’s and my research for Reclaiming Fair Use, which charts the resurgence of fair use and explains how to use it, we came across as much mythology as knowledge among our colleagues.

Academics employ fair use when they build slideshows for conference presentations; when they refer to the morning’s top news story in the lecture; when they write a review (even an unpublished one) quoting and commenting on a colleague’s work; when they ask experimental research subjects to react to a radio ad; and when they select an illustration for a point they make in a scholarly journal article or academic-press book.

Some of these uses are unconsidered; most are uncontested. But when the uses are questioned — usually by a publisher, or a librarian, or an IT person, and often because of new media and digital platforms — academics often lack the confidence to defend their choices, because they don’t know the law. Here are some of the most common myths we’ve encountered:

Myth #1: I don’t need fair use — educators have special privileges.

Reality: Educational uses have their own copyright exemptions, but those are extremely limited. Your classroom use may be covered, for instance — if your students aren’t Facebooking for class or posting assignments to YouTube -- but not your conference paper. So you’ll still need to employ fair use in many situations. You can refer to the mission and needs of your field to help you decide. There are already codes of best practices in fair use developed by film scholars, communication scholars, makers of open courseware, and media literacy teachers, for example. A librarians’ code is on the way (and then we’ll have a better handle on those pesky questions about video streaming and posting articles on Moodle). In some cases, educators have an easy time deciding how their uses are “transformative,” i.e., adding value and using the material for a different reason than the market currently serves (for instance, are students critically analyzing the content?). But if you’re using commercial materials explicitly designed for their educational environment, think twice — how is your use transformative?

Myth #2: Fair use is too unreliable to depend on -- it's all a judgment call.

Reality: Fair use is flexible, not unreliable. True, it’s a case-by-case decision, but so are all your other First Amendment rights. Yes, there are penalties for error, but those exist for libel, slander, obscenity, indecency and treason too. And are you finding any bright lines on, say, what exactly obscenity is?

What makes it easy to decide when there aren’t bright lines is knowing where common sense lies. The fair use doctrine is designed to be tailored to common usage, as is other First Amendment law. The doctrine only refers in general to four considerations ("factors") that people should weigh in deciding whether their use will add more to the culture than it will cost the rightsholder: the nature of the copyrighted material, the nature of the use, the amount, and the market effect.

In practice, since 1990 judges have boiled those concerns down to two: Is your use transformative? (In other words, did you add real value and did you employ this material for a different purpose from the one that the owner created it for?) Is the amount appropriate to satisfy that new purpose? If the answer to these questions is yes, the market effect concern takes a back seat. And judges look closely at community practice. That’s why codes of best practices in fair use have been so valuable in establish what is acceptable and normal to do in any professional community.

Myth #3: Fair use is easy for an academic — I can take whatever I want because everything I do is noncommercial.

Reality: Working noncommercially does give you some privileges, but you’ll be stuck in a gray zone if you depend on that to justify fair use. You won’t be able to circulate your work in academic journals (they carry ads) or books (even nonprofit publishing houses sell their books). Even when you contribute for free to online sites, somebody’s conducting commercial activity — perhaps an advertiser placing ads on a site, or a data miner. Noncommercial entities conduct commercial activities; Association for Research Libraries member libraries collectively spent over $1.3 billion on licensing and purchasing new materials in 2009-10. (A publishers’ lawsuit against Georgia State University is currently sounding some legal issues around libraries’ fair uses of these materials.) Besides, giving work away that contains valuable pieces of other people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim — if your use is transformative and an appropriate amount for that new purpose — this usually doesn’t matter much or at all. But simply not making money does not give you a fair use pass.

Myth #4: Fair use is too limited for me, because it’s useless when I publish or otherwise commercially market the work a fairly used item appears in.

Reality: Commerciality greases almost all circulation of culture in our society, and fair use is designed to expand the range of all cultural production, not just the noncommercial stuff. Almost all the (occasional) litigation on fair use has been over commercial uses, for a reason -- generally lawsuits aren't begun if there’s no money to be gained. And lawsuits since 1990 have typically been decided for fair users who have used work — commercially — in a transformative way and in appropriate amounts (even when that amount was, like it is in some photographic quotation, 100%!). Reassure your publishers that you can use that film still, magazine cover, advertisement or cartoon (if, of course, it’s in service of your scholarly argument, not a mere decoration), without licensing it. And be persistent; you may be the first academic they’ve met who knows your fair use rights.

Myth #5: Sure, fair use is on the books, but it’s too risky — even if I’m right, I could get sued.

Reality: Using your rights always means you take risks, though they may be minimal; all your First Amendment rights carry this risk. In fact, there is remarkably little litigation on fair use, although there is a lot of publicity around intellectual property conflicts generally. It’s easy to mix up the issues. For instance, the RIAA has sued a clutch of average-citizen file-sharers, who were simply exchanging materials they could have bought, for the same purpose as the market served. So they didn’t have strong fair use defenses, however misguided RIAA’s deterrent strategy may have been. Trademark and patent cases are often conflated with copyright cases. One recent lawsuit, in which a Harvard University research fellow downloaded thousands of academic articles, isn’t about copyright at all, but about hacking. Finally, don’t forget about perspective. Lawsuits are very occasional and circumscribed circumstances in a wide sea of perfectly legal and uncontested practice, most of it in the comfortable center of acceptability. For those hyper-rare fair-use lawsuits, a solid phalanx of pro bono lawyers waits eagerly in the wings to help, including Stanford Fair Use Project, the Electronic Frontier Foundation, and some intellectual property clinics.

Myth #6: Fair use is just a defense, not a right.

Reality: Fair use is one of those rights that comes into play once someone accuses you of infringement, and you say that you had a right to use that material. Until then, everyone is simply going along minding their own business, creating culture. The overwhelming majority of fair use acts simply occur (every Stewart and Colbert episode!), without any fuss. The right of defense occurs in other contexts as well. For instance, if you are physically attacked, you have the right of self-defense. This right never comes into play until you defend yourself, and then the attacker accuses you of hurting them. That’s when you invoke your right of self-defense.

Myth #7: I don’t want fair use, because I believe educational materials should be free to all, and I license all my work under Creative Commons licenses.

Reality: It’s great if you want to share your work for free with others, and Creative Commons licenses, among other ways, help you to do that. Many academic research libraries encourage open-source repositories, and we contribute to those too. But even people who want to give their work away may need to quote copyrighted material. They can’t give other people’s work away. We’ll never not need fair use, because copyright ownership rights are so widely seen as valuable, and because all culture builds on existing culture — as every academic who wrote a lit review section in a journal article knows.

All right, I admit it. Like many hopeful authors, I had been Googling my own book. To see if it had been blogged lately, or mentioned by someone at the White House. As usual, nothing new turned up. But then I saw something odd on the screen: a picture of my book’s front cover, but with a Slavic title. What was this?

My book was about a celebrated trial by combat in medieval France -- a duel to the death fought before the king in 1386 by two Norman nobles, Jean de Carrouges and Jacques Le Gris, over Le Gris's alleged rape of Carrouges's beautiful young wife. I spent years researching the story, eking out travel grants to visit archives in France, and tracking down the original documents in Paris; like any author, I felt protective toward my work.

At first, when the Slavic book cover showed up on my screen, I thought it was a joke. But the image linked to an online bookseller in Croatia, and to details about the publisher, translator, number of pages -- and price. Clearly, it was for real.

My next thought was that maybe my publisher had licensed a Croatian edition and forgotten to notify me. Besides foreign-rights sales in some larger territories, there had been smaller deals in places like Estonia and Hungary. Perhaps the Croatian edition, evidently published some three years earlier, had just been overlooked. I got in touch with my editor, who said that the publisher would look into it.

Several weeks later, my editor wrote to say, "You’ve been pirated!"

On learning the news, I felt a mixture of betrayal and pride. Yes, my book had been sold in a foreign country for several years without my receiving a dime of royalties there. But how many authors could claim to have been pirated in Croatia?

My publisher, I subsequently learned, had located the pirate in Zagreb and sent an ultimatum: cease and desist, or sign a contract and pay up. They signed and paid. Not much money was at stake, but I’m grateful to my editor and publisher for going to bat for me -- and for authors' rights in general.

Other odd things have happened since my book first appeared over five years ago. A few months after publication, for example, amid some early film interest, I got an e-mail from a total stranger, saying, "I’ve heard about your book. I haven’t bought it yet, or read it, but I plan to borrow it from the library. In the meantime, do you want to keep the film rights?" The request was so bold, or idiotic, that it annoyed me even more than the later piracy in Croatia. If the guy had asked me in person, I might have punched him.

A few months later, I received an e-mail from someone in France with the same last name – Le Gris – as the squire who was accused of rape in 1386. Oh no, I thought. They've heard about my book, and they're mad at me for dragging the family name through the mud all over again. But the note was friendly and led to further exchanges. A little over a year later, back in Paris to research a new book, I had a very pleasant lunch with one of Jacques Le Gris’s descendants. He didn’t even seem to mind that my research pointed to the likely guilt of his ancestor. Now, if only I could have lunch with a descendant from the other side of the celebrated case.

A little over a year ago, I received a package from France. In it was a self-published novel about the Carrouges family, neatly inscribed to me inside. Its scope was larger than my nonfiction book, but it recounted the 1386 crime and the celebrated duel at some length. Paging through it, I soon saw that it contained material I had quoted from rare documents that apparently the author had never consulted, and even many of my own descriptive phrases. The novel had a list of sources, but it did not include my book.

A novelist, of course is free to write his or her own version of the story – but not using my words, even translated, without acknowledgment. I considered taking action, especially since a translation of my own book would soon appear in France. What should I do first? Write a letter of complaint, pointing out examples of the borrowing? Write my editor again? Or write directly to my French publisher?

On reflection, however, I decided that the best thing to do in this case was absolutely nothing. Attacking a vanity-press publication might simply advertise it to readers who had never heard of it before. And it would distract my French publisher’s efforts to promote my own book. Besides, how would it look in France if an interloping American went on the warpath against a native author who had novelized the local patrimony, even if borrowing someone else's words to do it? Not good. The French might very well side with the author, not me. All considered, it was best just to leave the matter alone.

My book duly came out in France and was very kindly reviewed in a number of major newspapers, and even on Radio France. I’ll never know what would have happened if I had acted otherwise, but I think I did the right thing.

Sometimes our tools are our politics, and that’s not always a good thing. Last week, the Copyright Clearance Center announced that it would integrate a “Copyright Permissions Building Block” function directly into Blackboard’s course management tools. The service automates the process of clearing copyright for course materials by incorporating it directly into the Blackboard tool kit; instructors post materials into their course space, and then tell the application to send information about those materials to CCC for clearance.

For many, this move offers welcome relief to the confusion currently surrounding the issue of copyright. Getting clearance for the materials you provide to your students, despite the help of organizations like CCC, is still a complicated and opaque chore. Instructors either struggle through the clumsy legal and financial details or furtively dodge the process altogether and hope they don’t get caught. With the centralization offered by CCC and now the automation offered by this new Blackboard add-on, the process will be more user-friendly, comprehensive, and close at hand. As Tracey Armstrong, executive vice president for CCC, put it, “This integration is yet another success in making the ‘right thing’ become the ‘easy thing.’”

Certainly, anything that helps get intellectual resources into the hands of students in the format they find most useful is a good thing. I have no doubt that both the CCC and Blackboard genuinely want the practical details of getting course materials together, cleared, and to the student to be less and less an obstacle to actually teaching with those materials. But I’m skeptical of whether this “easy thing” actually leads to the “right thing.” Making copyright clearance work smoothly overlooks the question of whether we should be seeking clearance at all -- and what should instead be protected by the copyright exception we’ve come to know as “fair use.”

Fair use has been the most important exception to the rules of copyright since long before it was codified into law in 1976, especially for educators. For those uses of copyrighted materials that would otherwise be considered an infringement, the fair use doctrine offers us some leeway when making limited use for socially beneficial ends.

What ends are protected can vary, but the law explicitly includes education and criticism -- including a specific reference to “multiple copies for classroom use.” It’s what lets us quote other research in our own without seeking permission, or put an image we found online in our PowerPoint presentations, or play a film clip in class. All of these actions are copyright violations, but would enjoy fair use protection were they ever to go to court.

But there is a dispute, among those who dispute these kinds of things, about exactly why it is we need fair use in such circumstances. Some have argued that fair use is a practical solution for the complex process of clearing permission. If I had to clear permission every single time I quoted someone else’s research or Xeroxed a newspaper article for my students -- figuring out who owns the copyright and how to contact them, then gaining permission and (undoubtedly) negotiating a fee -- I might be discouraged from doing so simply because it’s difficult and time-consuming. In the absence of an easy way to clear copyright, we have fair use as a way to “let it slide” when the economic impact is minimal and the social value is great. 

Others argue that fair use is an affirmative protection designed to ensure that copyright owners don’t exploit their legal power to squelch the reuse of their work, especially when it might be critical of their ideas. If I want to include a quote in my classroom slides in order to demonstrate how derivative, how racist, or maybe just how incompetent the writer is, and copyright law compelled me to ask the writer’s permission to do it, he could simply say no, limiting my ability to powerfully critique the work. Since copyright veers dangerously close to a regulation of speech, fair use is a kind of First Amendment safety valve, such that speakers aren’t restricted by those they criticize by way of copyright. 

This distinction was largely theoretical until organizations like CCC came along. With the help of new database technologies and the Internet, the CCC has made it much easier for people to clear copyright, solving some of the difficulty of locating owners and negotiating a fair price by doing it for us. The automatic mechanism being built into Blackboard goes one step further, making the process smooth, user-friendly, and automatic. So, if fair use is merely a way to account for how difficult clearing copyright can be, then the protection is growing less and less necessary. Fair use can finally be replaced by what Tom Bell called “fared use” -- clear everything easily for a reasonable price. 

If, on the other hand, fair use is a protection of free speech and academic freedom that deliberately allow certain uses without permission, then the CCC/Blackboard plan raises a significant problem.

The fact that the fair use doctrine explicitly refers to criticism and parody suggests that it is not just for when permission is difficult to achieve, but when we shouldn’t have to ask permission at all. The Supreme Court said as much in Campbell v. Acuff-Rose (1994), when Justice Kennedy in a concurring decision noted that fair use “protects works we have reason to fear will not be licensed by copyright holders who wish to shield their works from criticism.” Even in a case in which permission was requested and denied, the court did not take this as a sign that the use was presumptively unfair. Fair use is much more than a salve for the difficulty of gaining permission.

Faculty and their universities should be at the forefront of the push for a more robust fair use, one that affirmatively protects “multiple copies for classroom use” when their distribution is noncommercial, especially as getting electronic readings to students is becoming ever cheaper and more practical. 

Automating the clearance process undoes the possibility of utilizing, and more importantly challenging, this slow disintegration of fair use. Even if the Blackboard mechanism allows instructors simply not to send their information to CCC for clearance (and it is unclear if it is, or eventually could become, a compulsory mechanism), the simple fact that clearance is becoming a technical default means that more and more instructors will default to it rather than invoking fair use.

The power of defaults is that they demarcate the “norm”; the protection of pedagogy and criticism envisioned in fair use will increasingly deteriorate as automatic clearance is made easier, more obvious, and automatic. This concern is only intensified as Blackboard, recently merged with WebCT, continues to become the single, dominant provider of course management software for universities in the United States.

Technologies have politics, in that they make certain arrangements easier and more commonplace. But technologies also have the tendency to erase politics, rendering invisible the very interests and efforts currently working to establish “more copyright protection is better” as the accepted truth, when it is far from it. 

As educators, scholars, librarians, and universities, we are in a rarified position to fight for a more robust protection of fair use in the digital realm, demanding that making “multiple copies for classroom use” means posting materials into Blackboard without needing to seek the permission of the copyright owners to do so.

The automation of copyright clearance now being deployed will work against this, continuing to shoehorn scholarship into the commercial model of information distribution, and erase the very question of what fair use was for -- not by squelching it, but simply by making it easier not to fight for it and harder to even ask if there’s an alternative.