How to Fight Fair Use Fear, Uncertainty, and Doubt : The Experience of One Open Educational Resource

Author : Lindsey Weeramuni

At the launch of one of the early online open educational resources (OER) in 2002, the approach to addressing copyright was uncertain. Did the university or the faculty own their material? How would the third-party material be handled? Was all of its use considered fair use under Section 107 of the U.S. Copyright Act (Title 17, United States Code) because of its educational purpose?

Or was permission-seeking necessary for this project to succeed and protect the integrity of faculty and university? For many years, this OER was conservative in its approach to third-party material, avoiding making fair use claims on the theory that it was too risky and difficult to prove in the face of an infringement claim.

Additionally, being one of the early projects of its kind, there was fear of becoming a target for ambitious copyright holders wanting to make headlines (and perhaps win lawsuits). It was not until 2009 that the Code of Best Practices in Fair Use for OpenCourseWare was written by a community of practitioners who believed that if fair use worked for documentary film makers, video creators, and others (including big media), it worked in open education as well.

Once this Code was adopted, universities and institutions were able to offer more rich and complete course content to their users than before. This paper explains how it happened at this early open educational resource offering.

URL : How to Fight Fair Use Fear, Uncertainty, and Doubt : The Experience of One Open Educational Resource

DOI: https://doi.org/10.17161/jcel.v3i1.9751

Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship

Author : Matthew D. Bunker

Fair use in copyright law is an enormously complex legal doctrine. Although much scholarly attention has been paid to fair use in the context of teaching — particularly in on-line education — relatively little research exists on the problem of fair use in scholarship.

This article analyzes reported federal cases on fair use in scholarly contexts, with a particular emphasis on the transformative use doctrine that has become enormously influential in fair use determinations.

The article explores insights from this body of case law that may assist future scholars wishing to fairly use copyrighted expression in their scholarship.

URL : Decoding Academic Fair Use: Transformative Use and the Fair Use Doctrine in Scholarship

DOI : https://doi.org/10.17161/jcel.v3i1.6481

Digital Copyright and Public Access: Why the Knowledge Principle Dictates a Fair Access Right for Public Libraries

This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the Constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works.

Under what is best termed the “knowledge principle,” access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers – from early booksellers to modern Hollywood film companies – failing to notice the central role of access to works as a necessary pre-condition to the creation of new works.

The realities of the digital era further hinder the functioning of this mechanism. Ownership of copies of texts has morphed into a limited right of possession of digital files. Public libraries can no longer fulfill their mission of maximizing the circulation of materials in order to spread available knowledge among citizens.

This Article proposes an alternative model to the conventional copyright theories, focusing on the critical role that access to knowledge resources plays in the dynamic processes at work in the production of knowledge and the creation of new works.

This Article proposes a non-waivable “fair access” right exercisable by public libraries in order to realign copyright with its Constitutional justification, and more importantly to support the knowledge creation process for the future of our democratic society.

URL : http://ssrn.com/abstract=2315188

Fair use vs copyright non compliance among the…

Fair use vs copyright non-compliance among the academic community in universities of developing nations :

“The purpose of the paper is to assess whether the copyrighted resources in the universities are being used following fair use principle or not and if there is any copyright management policy in the universities to manage the access to those resources .Quantitative data regarding the use of resources in the library collected through online (using survey monkey web platform) and offline were computed through statistical software (MINITAB version 13).Copyright Resources are not used complying fair use principles in the universities of West Bengal and there is no copyright management policy in any university of West Bengal. Considering similar economic conditions, the findings are equally applicable in other developing nations. Study was conducted among the universities of West Bengal. However result of the study is applicable to universities in all developing nations. This study can inform the entire academic community regarding fair use and can make university or appropriate authority feel the need to design and develop balanced and well-defined copyright management policy for the universities. There is close relation in between fair use and economic condition of that country. The unique context of fair use of copyrighted resources in the universities of West Bengal can add to the body of literature related with intellectual property rights in the universities and form the basis, for further comprehensive study.”

URL : http://www.ijodls.in/9.html

Code of Best Practices in Fair Use for…

Code of Best Practices in Fair Use for Academic and Research Libraries :

“This is a code of best practices in fair use devised specifically by and for the academic and research library community. It enhances the ability of librarians to rely on fair use by documenting the considered views of the library community about best practices in fair use, drawn from the actual practices and experience of the library community itself.

It identifies eight situations that represent the library community’s current consensus about acceptable practices for the fair use of copyrighted materials and describes a carefully derived consensus within the library community about how those rights should apply in certain recurrent situations. These are the issues around which a clear consensus emerged over more than a year of discussions. The groups also talked about other issues; on some, there seemed not to be a consensus, and group members found others to be less urgent. The community may wish to revisit this process in the future to deliberate on emerging and evolving issues and uses.”

URL : http://www.arl.org/bm~doc/code-of-best-practices-fair-use.pdf

Fair Use Challenges in Academic and Rese…

Fair Use Challenges in Academic and Research Libraries :

“This report summarizes research into the current application of fair use to meet the missions of U.S. academic and research libraries. Sixty-five librarians were interviewed
confidentially by telephone for around one hour each. They were asked about their employment of fair use in five key areas of practice: support for teaching and learning, support for scholarship, preservation, exhibition and public outreach, and serving disabled communities. Interviewees reported a strong commitment to obeying copyright law; rarely concerned about their own liability, librarians primarily felt
responsible for ensuring their institutions were in compliance with the law. Practice varied considerably, from a rigid permissions culture to ample employment of fair use.”

URL : http://www.arl.org/bm~doc/arl_csm_fairusereport.pdf

The Pre-History of Fair Use : “This art…

The Pre-History of Fair Use :
“This article reconsiders the history of copyright’s pivotal fair use doctrine. The history of fair use does not in fact begin with early American cases such as Folsom v. Marsh in 1841, as most accounts assume – the complete history of the fair use doctrine begins with over a century of copyright litigation in the English courts. Reviewing this ‘pre-history’ of the American fair use doctrine leads to three significant conclusions. The first is that copyright and fair use evolved together. Virtually from its inception, statutory copyright went well beyond merely mechanical acts of reproduction and was defined by the concept of fair abridgment. The second insight gained by extending our historical view is that there is in fact substantial continuity between fair abridgment in the pre-modern era and fair use in the United States today. These findings have substantial implications for copyright law today, the principal one being that fair use is central to the formulation of copyright, and not a mere exception.

The third conclusion relates to the contribution of Folsom v. Marsh itself. The pre-modern cases illustrate a half-formed notion of the derivative right: unauthorized derivatives could be enjoined to defend the market of the original work, but they did not constitute a separate market unto themselves. Folsom departs from the earlier English cases in that it recognizes derivatives as inherently valuable, not just a thing to be enjoined to defend the original work against substitution. This subtle shift is important because while the boundaries of a defensive derivative right can be ascertained with respect to the effect of the defendant’s work on the plaintiff’s original market, the boundaries of an offensive derivative right can only be determined with reference to some other limiting principle. This extension of the derivative right may well have been inevitable. It seems likely that as more and more derivatives were enjoined defensively, courts and copyright owners began to see these derivatives as part of the author’s inherent rights in relation to his creation. In other words, once copyright owners were allowed to preclude derivatives to prevent competition with their original works, they quickly grew bold enough to assert an exclusive right in derivative works for their own sake. A development which, for good or ill, bridges the gap between pre-modern and modern copyright.”
URL : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1663366