Fair Use and Fairness on Campus

• Publication year: 2009

Fair Use and Fairness on Campus⁰
Deborah Gerhardt ¹ and Madelyn Wessel ²

Copyright protection was meant to promote learning; yet copyright law too often thwarts this very purpose. Fair use is the primary means to restore the balance between the copyright regime's enablement of proprietary control and the public good of access. It is a right that must be exercised if it is not to be lost. This article demonstrates why fair use is so critical to higher education, and seeks to clarify legal ambiguities of the law of fair use in order to better align this doctrine with critical educational goals. To illustrate the importance of the issue, we present data demonstrating the lack of equality in campus access to and use of information. For educational institutions with limited resources, fair use is of crucial importance, enabling faculty and students to access reasonable amounts of unlicensed content for scholarly and educational purposes. For individual scholars with limited access to copyright counsel or institutional subsidies for permissions and fees, fair use is also of crucial importance, enabling dissemination and publication of research. Unequal resources makes the lack of clarity and reluctance to use and defend fair use within the academy especially problematic. Fair use muscles may atrophy and flex, but the latter mode of action is far more empowering to the academic mission and far better aligned with the Founders' understanding that copyright is intrinsically entwined with public access.

I. Introduction

The power to protect copyright law was written into the U.S. Constitution in order to stimulate, rather than limit, creative expression.³ The nation's Founders believed that protecting copyrights would benefit society by stimulating greater public access to more work in order to encourage learning.⁴ The Supreme Court has explained that the Copyright Clause "motivate[s] the creative activity of authors and inventors by the provision of a special reward, and . . . allow[s] the public access to the products of their genius after the limited period of exclusive control has expired."⁵ Although our understanding of this particular constitutional purpose is often eclipsed by other policies, it remains an important consideration that merits more attention.

An examination of the history of U.S. copyright legislation reveals an expansion of copyright owner rights, a diminution of their responsibilities, and, as a result, a shrinking public domain.⁶ More and more works have been given copyright protection, often to address new forms of expression made possible by new technology.⁷ Formalities once required to get the big bundle of copyrights have been discarded.⁸ Copyright terms are now longer.⁹ The application of copyright laws to new technologies and digital environments has become extraordinarily complex. The resulting legal uncertainties endanger the core values of public and educational access, scholarship, and creativity that copyright laws were meant to protect.

While the relationship between copyright and the First Amendment to the U.S. Constitution has often been explored,¹⁰ this article notes copyright's intersection with values anchored in other parts of the Constitution, namely the educational purpose of the Copyright Clause¹¹ itself and provisions dealing with equal protection. Access to copyrighted content in education is not simply a matter of free speech; it is also a question of social justice.

Wealthier institutions have many advantages. They can purchase and access greater amounts of content (especially in the sciences) and hire licensing specialists and copyright counsel to maximize their uses of these resources. They are also able to provide more monetary and legal resources to faculty whose research and publication projects hit the rocky waters of permissions and fees. Because access to information is a critical component of the academic experience, copyright control and increasing costs for digital materials have the potential to exacerbate inequalities in our nation's schools.

in this environment, it is more important than ever to understand the copyright exemptions that do not require permission or fees before content may be used for purposes central to higher education. of these, the most critical mechanism, the principle of fair use, provides a means of ameliorating inequalities in access to and use of information. Fair use accomplishes this goal by safeguarding many reasonable uses of content for teaching, research, and scholarship without requiring the payment of fees.¹² Surely if any societal institution has a moral and philosophical imperative to understand and exercise rights to fair use, it should be higher education. Yet many factors contribute to a fear of fair use and reluctance to exercise these rights within the academy.

in Part ii, we explore the landscape that showed us the importance of thinking about access to information as a question of social justice. We provide summary statistics that demonstrate the inequality in access to content first among relatively resource rich research institutions and then across a broader spectrum of colleges and universities. Against this backdrop, we consider how the dramatic inequalities in online resources throughout academia should affect copyright jurisprudence and the understanding and application of fair use in a digital age.

Application of the fair use standard requires thought, judgment, and the time to keep a watchful eye over the ever-changing landscape of copyright precedent. in Part iii, we argue that the lack of clarity (real and perceived) in copyright law provides exceptional challenges, especially for institutions without access to copyright counsel. When answers are not clear and potential liability is thought to be significant, saying "no" to a proposed use is often considered the safest course. The legal risks may be perceived as especially threatening at institutions with limited resources. in seeking clarity and avoiding risk, the temptation can be strong to act as if fair use does not exist and to shift campus copyright policy to a safe zone based on blanket licenses, fees, and permissions, even when law would not require these actions. We present reasons to resist that temptation, striving to clarify recent changes in fair use jurisprudence that support practices which foster equity in access to information.

Part IV reexamines well-established fair use myths in light of recent legal authority. Copyright fair use is dynamic. As federal laws have expanded authors' and publishers' copyrights, the courts have recognized a parallel expansion in the doctrine of fair use. Although the boundaries of fair use continue to be unclear in many contexts, year by year, case law tends to contribute to clarity, often adding to the list of uses that a court would consider to be fair. Given the evolution of fair use jurisprudence, we must take the time to reflect on our assumptions about fair use as new authority emerges.

Part V illustrates the importance of understanding fair use through a practical application in the context of academic scholarship. Several recent incidents involving scholarly publications are recounted to demonstrate the difference that the assertion and defense of fair use can make.¹³ Next, we demonstrate that in the context of scholarly writing, fair use will generally favor the reproduction of content that is necessary to support critical commentary. Finally, we conclude that the fair use right must remain a strong right on campus unless we want fear of copyright to interfere with the educational mission and exacerbate inequalities that affect both students and scholars.

II. The Importance of Flexing Fair Use Muscles on
Campus

New technologies have provided unprecedented means to distribute, research, use, and access content in the classroom. Today, most scholars expect to have electronic access to current research journals. Digital content provides many important advantages in that it occupies less physical space, provides access to multiple users simultaneously, and allows for searchability. Yet it also creates new costs, limitations, and complications under copyright law regarding who may access the content and how it may be used.

The significant differences in managing the use of hard and electronic copies present many difficult copyright issues. Books and journals printed on paper can be accessed, read, and assigned (perhaps by placing the text on a reserve shelf), as long as the copy remains in the library's collection, without additional compensation transferred to the copyright owner. The first sale doctrine provides a wide scope of protection that allows multiple users to read a printed book.¹⁴ Once a print text is purchased, a library does not face recurring costs for access afforded its patrons. Additionally, libraries generally could develop consistent principled policies under the provisions of the Copyright Act relevant to the use and sharing of books and journals which reside in their collections as hard copies (including with other libraries through interlibrary loan provisions). In contrast, each electronic collection is governed by a different license agreement with different terms of use.¹⁵

In addition, access to current online journals is generally purchased annually.¹⁶ As Ann Bartow astutely observes, "[m]ost electronic publications are licensed rather than sold under terms and conditions that may not be readily negotiable. It is not at all clear that digitalization enhances access, and it may instead be true that it decreases the scope of collections over time."¹⁷ Many would describe the digital licensing relationship as more like a rental than a purchase in the sense that libraries must maintain a licensing relationship with the journal publisher to keep online access for the campus community.¹⁸ Even though many astute research libraries negotiate provisions ensuring some archival rights...