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presentations; when they refer to the morning’s top news story in the lecture; when they write a review (even an unpublished one) quoting and commenting on a colleague’s work; when they ask experimental research subjects to react to a radio ad; and when they select an illustration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 billionon 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.
Submitted by Eric Jager on August 1, 2011 - 3:00am
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.
Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.
For most scholarly journals, the transition away from the print format and to an exclusive reliance on the electronic version seems all but inevitable, driven by user preferences for electronic journals and concerns about collecting the same information in two formats. But this shift away from print, in the absence of strategic planning by a higher proportion of libraries and publishers, may endanger the viability of certain journals and even the journal literature more broadly -- while not even reducing costs in the ways that have long been assumed.
Although the opportunities before us are significant, a smooth transition away from print and to electronic versions of journals requires concerted action, most of it individually by libraries and publishers.
In reaching this conclusion, we rely largely on a series of studies, of both publishers and libraries, in which we examined some of the incentives for a transition and some of the opportunities and challenges that present themselves. Complete findings of our library study, on which we partnered with Don King and Ann Okerson, were published as The Nonsubscription Side of Periodicals. We also recently completed a study of the operations of 10 journal publishers, in conjunction with Mary Waltham, an independent publishing consultant.
Taken together, these studies suggest that an electronic-only environment would be more cost-effective than print-only for most journals, with cost savings for both libraries and publishers. But this systemwide perspective must also be balanced against a more textured examination of libraries and publishers.
On the publisher side, the transition to online journals has been facilitated by some of the largest publishers, commercial and nonprofit. These publishers have already invested in and embraced a dual-format mode of publishing; they have diversified their revenue streams with separately identifiable income from both print and now increasingly electronic formats. Although the decreasing number of print subscriptions may have a negative impact on revenues, these publishers’ pricing has evolved alongside the economies of online only delivery to mitigate the effects of print cancellations on the bottom line.
The trend has been to adopt value-based pricing that recognizes the convenience of a single license serving an entire campus (rather than multiple subscriptions), with price varying by institutional size, intensity of research activity, and/or number of online users. By “flipping” their pricing to be driven primarily by the electronic version, with print effectively an add-on, these publishers have been able to manage the inevitable decline of their print business without sacrificing net earnings. They are today largely agnostic to format and, when faced with price complaints, are now positioned to recommend that libraries consider canceling their print subscriptions in favor of electronic-only access.
Other journal publishers, especially smaller nonprofit scholarly societies in the humanities and social sciences and some university presses, are only beginning to make this transition. Even when they publish electronic versions in addition to print, these publishers have generally been slower to reconceive their business models to accommodate a dual-format environment that might rapidly become electronic-only. Their business models depend on revenues received from print, in some cases with significant contributions from advertising, and are often unable to accommodate significant print cancellations in favor of electronic access.
Until recently, this has perhaps not been unreasonable, as demand for electronic journals has been slower to build in the humanities and some social science disciplines. But the business models of these publishers are now not sufficiently durable to sustain the journals business in the event that libraries move aggressively away from the print format.
Many American academic libraries have sought to provide journals in both print and electronic formats for the past 5 to 10 years. The advantages of the electronic format have been clear, so these were licensed as rapidly as possible, but it has taken time for some faculty members to grow comfortable with an exclusive dependence on the electronic format. In addition, librarians were concerned about the absence of an acceptable electronic-archiving solution, given that that their cancellation of print editions would prevent higher education from depending on print as the archival format.
In the past year or two, the movement away from print by users in higher education has expanded and accelerated. No longer is widespread migration away from print restricted to early adopters like Drexel and Suffolk Universities; it has become the norm at a broad range of academic institutions, from liberal arts colleges to the largest research universities. Ongoing budget shortfalls in academe have probably been the underlying motivation. The strategic pricing models offered by some of the largest publishers, which offer a price reduction for the cancellation of print, have provided a financial incentive for libraries to contemplate completing the transition.
Faced with resource constraints, librarians have been required to make hard choices, electing not to purchase the print version but only to license electronic access to many journals -- a step more easily made in light of growing faculty acceptance of the electronic format. Consequently, especially in the sciences, but increasingly even in the humanities, library demand for print has begun to fall. As demand for print journals continues to decline and economies of scale of print collections are lost, there is likely to be a tipping point at which continued collecting of print no longer makes sense and libraries begin to rely only upon journals that are available electronically. As this tipping point approaches, at unknown speed, libraries and publishers need to evaluate how they can best manage it. We offer several specific recommendations.
First, for those publishers that have not yet developed a strategy for an electronic-only journals environment and the transition to it, the future is now. Today’s dual-format system can only be managed effectively with a rigorous accounting of the costs and revenues of print and electronic and how these break down by format. Because some costs incurred irrespective of format are difficult to allocate, this accounting is complicated. It is also, however, critical, allowing publishers to understand the performance of each format as currently priced and, as a result, to project how the transition to an electronic-only environment would affect them. Publishers that do not immediately undertake these analyses and, if necessary, adjust their business models accordingly, may suffer dramatically as the transition accelerates and libraries reach a tipping point.
Second, in this transition, libraries and higher education more broadly should consider how they can support the publishers that are faced with a difficult transition. A disconcerting number of nonprofit publishers, especially scholarly societies and university presses that have the greatest presence in the humanities and social sciences fields, have a particularly complicated transition to make. The university presses and scholarly societies have been traditionally strong allies of academic libraries. They may have priced their electronic journals generously (and unrealistically). Consequently, a business model revamped to accommodate the transition may often result in a significant price increase for the electronic format. In cases where price increases are not predatory but rather adjustments for earlier unrealistic prices, libraries should act with empathy. If libraries cancel journals based on large percentage price increases (even when, measured in dollars, the increases are trivial), they may unintentionally punish lower-price publishers struggling to make the transition as efficiently as possible.
Third, this same set of publishers is particularly vulnerable, because their strategic planning must take place in the absence of the working capital and the economies of scale on which larger publishers have relied. As a result, some humanities journals published by small societies are not yet even available electronically. The community has a need for collaborative solutions like Project Muse or HighWire, (initiatives that provide the infrastructure to create and distribute electronic journals) for the scholarly societies that publish the smaller journals in the humanities and social sciences. But if such solutions are not developed or cannot succeed in relatively short order on a broader scale, the alternative may be the replacement of many of these journals with blogs, repositories, or other less formal distribution models.
Fourth, although libraries today face difficult questions about whether and when to proceed with electronic-only access to traditionally print journals, they should try to manage this transition strategically and, in doing so, deserve support from all members of the higher education community. It has been unusual thus far for libraries to undertake a strategic, all-encompassing format review process, since it is often far more politically palatable to cancel print versions as a tactical retreat in the face of budgetary pressures. But a chaotic retreat from print will almost certainly not allow libraries to realize the maximum potential cost savings, whereas a managed strategic format review can permit far more effective planning and cost savings.
Beyond a focus on local costs and benefits, there are a number of broader issues that many libraries will want to consider in such a strategic format review. The widespread migration from print to electronic seems likely to eliminate library ownership of new accessions, with licensing taking the place of purchase. In cases where ownership led to certain expectations or practices, these will have to be rethought in a licensing-only environment. From our perspective, the safeguarding of materials for future generations is among the most pressing practices deserving reconsideration. Questions about the necessity of developing or deploying electronic archiving solutions, and the adequacy of the existing solutions, deserve serious consideration by all libraries contemplating a migration away from print resources. In addition, the transition to electronic journals begins to raise questions about how to ensure the preservation of existing print collections. Many observers have concluded that a paper repository framework is the optimal solution, but although individual repositories have been created at the University of California, the Five Colleges, and elsewhere, the organizational work to develop a comprehensive framework for them has yet to begin.
The implications both of licensing on archiving and of the future of existing print collections are addressable as part of any library’s strategic planning for the transition to an electronic-only environment -- but all too often are being forgotten under the pressure of the budgetary axe.
These challenges appear to us to be some of the most urgent facing libraries and publishers in the nearly inevitable transition to an electronic-only journals environment. Both libraries and publishers should proceed under the assumption that the transition may take place fairly rapidly, as either side may reach a tipping point when it is no longer cost-effective to publish or purchase any print versions. It is not impossible for this transition to occur gracefully, but to do so will require the concerted efforts of individual libraries and individual publishers.
Eileen Gifford Fenton and Roger C. Schonfeld
Eileen Gifford Fenton is executive director of Portico, whose mission is to preserve scholarly literature published in electronic form and to ensure that these materials remain accessible. Portico was launched by JSTOR and is being incubated by Ithaka, with support from the Andrew W. Mellon Foundation. Roger C. Schonfeld is coordinator of research for Ithaka, a nonprofit organization formed to accelerate the productive uses of information technologies for the benefit of academia. He is the author of JSTOR: A History (Princeton University Press, 2003).Â
Whether we’re aware of it or not, the doctrine of “fair use” built into copyright law is one of the most important protections available to scholars, librarians, and students. Every time you quote from someone else’s work, every time you photocopy an article for a student, every time you read a passage aloud to your class, you are technically in violation of copyright.
The reason that an army of publishers and FBI agents aren’t smashing down your office door is that U.S. jurisprudence has long understood that a totalizing approach to copyright would be disastrous. Fair use is the only way we as individuals can together do what is fundamentally a collective endeavor, scholarship, in an information ecology that otherwise lives and dies by the intensely individualizing force of the marketplace.
But fair use has been carrying a heavy load lately, and it’s starting to show its limitations. Over the last few decades and especially amid the recent “copyright wars,” a powerful new philosophy has emerged: Rather than seeing copyright as a careful balance between the interests of private owners and the public, powerful content industries have argued that robustly protecting private interests is always the best way to serve the public. It’s the trickle-down theory of knowledge: Give the power to the producers and get out of the way, and it will eventually get to everyone who needs it. And digital technologies have handed copyright owners further power to regulate the use of their work, to further commodify information in ways never before imagined.
While most of us in higher education are little content industries ourselves, we should not be seduced into forgetting our role first and foremost as the keepers, distributors, and developers of our society’s body of public knowledge. We must fight for the promise copyright made to the public: All these economic rights are only in the service of intellectual progress. However, our rhetorical arsenal in this battle seems to be only to trot out fair use, i.e. the right to violate copyright for progressive reasons. Technical copy protection? Don’t forget about fair use. Restricting peer-to-peer networks? Don’t forget about fair use. Suing our students for downloading? Don’t forget about fair use. Automatic permission systems in educational courseware? Don’t forget about fair use. It’s a wonder the poor statute can barely stand, considering how often it is invoked as defense, criticized as folly.
This dependence on fair use, to somehow safeguard all of the myriad “public interest” elements of copyright’s balance, risks crushing it altogether -- no more so than in the pending battle around Google Book Search.
For those who don’t know, the search engine giant recently announced its aspiration to digitize every book ever printed. To do this, it partnered with the university libraries of Stanford, Harvard, Michigan, and Oxford, and with the New York Public Library. Together they have already begun the process of digitizing works whose copyright protection has run out -- right now, those published before 1924. These books would be full-text searchable and could be read in their entirety online, for free. For more recent books still protected under copyright, Google intends to digitize and make them searchable as well; however, the text returned in response to the search query would only be a short excerpt around the located word or phrase. Publishers who don’t want their work to appear at all can opt out of the system. Links will lead users to vendors where the book in question can be purchased.
To be clear, Google’s project does require making copies of numerous copyrighted books, and an unauthorized copy at that. Google says this copy is a fair use. And in lawsuits brought in September and October of 2005, the Author’s Guild ( complaint) and the Association of American Publishers ( complaint) argue it is a violation of their rights, and an attempt to unfairly capitalize on their work.
Unlike battles around digital music that have occupied the courts’ attention of late, this case will be of vital importance for the academic community. What is at stake is the possibility of a digital database of all written knowledge, and the question of who gets to produce it and under what conditions. Some think this is the Library at Alexandria finally realized; others think it's risky to have just one company running the stacks. But the case will live or die not on the question of the value of such a database to users, but on the narrower legal question of whether Google has the right to scan the books to begin with.
Perhaps this case will settle -- Google certainly has the funds to do so if it chooses. If it does get heard by the courts, what is of greatest importance, I believe, is how well the doctrine of fair use can carry the weight of this particular dispute. Lawrence Lessig has argued that fair use is being stretched thin because copying is so fundamental to the digital environment; uses that never even rang copyright’s bell, because they now require a copy to be made in the process, find themselves under legal scrutiny. I believe this is true. But fair use has already been pulled in too many directions, well before the Internet stretched it to its breaking point.
Fair use has a century-long history in U.S. courts, as a handy way for judges to stave off copyright claims when the use in question is socially valuable. At first, it was a way to protect small amounts of copying for the sake of criticism; as Justice Story noted in Folsom v. Marsh (1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”
As such, one of the important criteria used by the courts to judge a use fair has been whether the new work is “transformative,” rather than merely replacing the old. The most famous of these is Acuff-Rose v. Campbell (1994), in which a surprisingly culturally savvy Supreme Court found that 2 Live Crew’s sampling of the Roy Orbison classic “Pretty Woman” was a kind of parody, however crude, and should be protected as fair -- it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
However, when fair use was finally codified in 1976, the primary motivation was not to protect criticism or parody but to accommodate the increasing use of the Xerox machine, particularly in education. University libraries did not want to risk liability when they made copies of journals and book chapters for faculty and students, and aggressively lobbied Congress for some legal protection to do so. When fair use became law, it included the four factors that had developed through court precedent, but also specified “multiple copies for classroom use” alongside parody, criticism, journalism, and scholarship as the likely contexts for the use to be considered fair.
Making multiple copies of an article for use in the classroom does not claim to produce a new work, in the way that sampling Orbison’s tune does. The value of the use is not that it is “transformative,” but that it is “distributive.” Now fair use is saddled with two aspirations. If the first understands that new work often needs to lean on and borrow from existing work, the second understands that the market mechanisms and distribution technologies that circulate work do not always achieve the scope and access we would like, or that other socially valuable activities require.
The courts have since used fair use in this ‘distributive’ sense, allowing cable TV to retransmit copyrighted broadcasts to audiences who could not otherwise receive them, prohibiting Kinko’s from producing course packets without paying a fee but leaving open the possibility that universities could do so as long as they do not enjoy direct commercial gain, and most notably in Sony v. Universal (1984), granting VCR manufacturers immunity to copyright penalties because some VCR users do make unauthorized copies of protected movies. The court argued that users have the right to record shows in order to watch them at other times, that this in fact “enlarges the television viewing audience” -- even the beloved Mr. Rogers testified that he wanted public school teachers to be able to tape his show and show it in class the next day. Again, these fair uses are not transformative, but distributive.
Is Google’s book search project fair use? This was the question vigorously debated, but by no means settled, at the recent “Battle over Books” debate at the New York Public Library and the blog-off that followed. Most copyright watchers largely agree that, if it makes it to court, the legal answer will come down to a battle of precedents. (See, for example, Jonathan Band’s “The Google Print Library: A Copyright Analysis.”) Google will come out on top if the court sees the case as akin to Kelly v. Arriba-Soft (2003), which allowed an image search engine to copy images from the Web so as to make thumbnail versions available to user queries.
The publishers and authors will likely triumph if the court turns to UMG Recordings et. al. v. MP3.com (2000), where MP3.com was found to be infringing when it made single copies of 400,000 CDs in order to stock a digital locker from which users could stream music they could prove they already owned. Google needs fair use to accommodate an activity that is neither “transformative” in the classic sense, or “distributive” in the Sony sense. Neither precedent did either, and the solutions were work-arounds to force the square pegs of searching and streaming in the oddly-shaped hole fair use offers them.
Let’s give fair use a break by sending in a legislative relief pitcher, one that can better allow for the role search engines play in facilitating the circulation of digital information. If fair use has been protecting both ‘transformative’ and ‘distributive’ uses, today we need a statute that can cover the kind of “indexing” uses that Google is after.
If we recognize that the Internet offers us the chance to make much more of our society’s culture and knowledge available to more people, and we recognize that to make this massive resource most useful requires ways to navigate and search it, and we further recognize that search engines like Google need to make copies of that work in order to make it searchable, then we have a genuine and reasonable public interest in ensuring that that they and others can do so. At the same time, we should also ensure that doing so doesn’t undercut the possibility of selling these works, and ideally should help their sales.
The publishers’ concern is not that Google shouldn’t make books searchable, but that they should have to pay a fee to do so. Such a fee represents the compensation not for lost sales, but to match what they might have earned had they provided this search function themselves. So let’s imagine that they do just that; Harper & Collins has already announced that it will develop a digital database of their books, following the lead of academic journal publishers like Sage. We could decide that this is a reasonable exploitation of one’s copyright, and forbid Google from building a library.
What this is likely to produce is a bunch of different, publisher-specific archives, all searchable under different criteria in different ways, all with different rules for how much text you can view and under what conditions -- and price. Smaller publishers will be less able to afford to do any of this, so once again we will be incidentally privileging those represented by the larger publishers when what we want is all work to be as available as possible.
And all publishers will be in a position to exclude some of their works from public view, for whatever idiosyncratic (or, more likely, financial) reasons they fancy. Perhaps someone would develop a meta-search that could query many of these archives simultaneously and return the results together -- in all likelihood, it would be Google. But this does not solve the systemic problem posed by letting publishers also govern access to their content.
What I think we’re after is something more straightforward, but nearly impossible to achieve. In this dream scenario, every author would make his or her work available in a digital form that is searchable but cannot be redistributed, in a widely compatible format, marked with the same kinds of metadata. We wouldn’t need Google Book Search, because these book “footprints” would all be online and available for searches just as Web sites are. But this is certainly an unreasonable and prohibitive request to make of authors, at least right now. For all intents and purposes, this is what Google seems willing to provide for us, with the promise of some ad revenue in return. As a less than perfect version of that ideal, it’s quite good.
Waiting for fair use to shield this expanding range of uses is slowing the innovation in information, knowledge, and culture the Internet seems ready to facilitate. And every time it does, we risk a court setting a retrograde precedent that cements digital culture into place for good. We need a new statute that acknowledges and accommodates the common sense recognition that search is good, that it requires incidental copying, and that it should not be left to individual, competing publishers to make their work part of the public trust.
In a moment when we are handing content owners much more control not only over the use of their work but over access to it, we need to make a parallel commitment to ensuring and expanding access of a different kind, as an aggregate collection of all things thought and written that can be easily explored. And, we need to let fair use protect the activities it’s designed to protect, instead of letting it fray as it stands in as the only protection against a locked and licensed digital world.
Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.