The war between publishers and academia over freedom to make fair use of copyrighted materials within the educational context appears to be escalating. In a series of articles published in the June 6th edition of The Chronicle of Higher Education, you can read how scholars are fighting back to overturn lawsuits and policies aimed at hampering teaching and research.
The public domain has always constituted a safe haven for access to teaching and research materials. Yet, Congress has succeeded in clouding matters by removing certain 20th Century foreign works from the public domain and restoring copyright protection. As a result, such “re-copyrighted” works are no longer available for unrestricted reproduction. The constitutionality of this law is currently before the U.S. Supreme Court in a case brought by a University of Colorado musical conductor who has lost unfettered access to a number of Russian and Italian works now restored to copyright protection.
Two universities, Georgia State U. and UCLA, are currently being sued by publishers in actions focusing on the fair use of copyrighted materials by academic institutions. Georgia is under fire for its online sharing of copyrighted materials with students. The publishers seek to require the university to obtain permission to reproduce any copyrighted materials and to impose extensive limitations on the scope of such copying. UCLA is being challenged for copying DVDs of Shakespeare plays and streaming them online for use by faculty and students in courses. A decision in this case could prohibit what has become a common practice.
There is an informative article in which Nancy Sims, copyright-program librarian at the University of Minnesota, offers some pointers to the “copyright-confused.” She reminds instructors that they own the copyright in all works that they create, even a picture drawn on a scrap of paper. She warns scholars to know their rights when dealing with publisher and how such rights are impaired when copyright is transferred to a publisher. She acknowledges that fair use is an amorphous concept and defines it as “the breathing space for freedom of expression within copyright law.” She also reminds instructors that the classroom-use exemption is an important supplement to fair use in the ability to use copyrighted materials in the classroom. Instructors were admonished not to be ruled by fear, but rather to set goals and then determine how best to accomplish them within the copyright law. Lastly, she suggests a willingness to ask for help from the general counsel’s office and to avoid an isolated approach avoiding anything legally risky.
Patricia Aufderheide and Peter Jaszi of American University are authors of an upcoming book titled Reclaiming Fair Use: How to Put Balance Back in Copyright. They seek to fight misperceptions about fair use and to educate scholars about rights they already have, but about which they may not know. The book offers guidelines for customizing a fair use approach for different academic and artistic pursuits. In the field of research libraries, the authors started the process by conducting a series of interviews with leaders in the field and then conducting focus groups of practitioners on how they interpreted and applied fair use. The result was a revelation that certain practices avoided by some practitioners were actually permissible fair use. This process sought to dispel prior guidelines seeking to impose limits on how many words of a text or minutes of a film could be reproduced in favor of a focus on a more subjective consideration of the context in which copyrighted material is used. The resulting guidelines will be reviewed by legal scholars before publication to avoid users from losing a legal challenge. In a response to a warning by a copyright holders’ group that the guidelines may offer a false sense of security in a complex area, the authors questioned such scare tactics and reiterated the need to operate within an admittedly “fuzzy” area of the law.
A final article explored the reluctance of universities to digitize collections of public domain materials containing “orphan” works, i.e., works whose copyright owners cannot be found. For example, UCLA is in the process of digitizing a collection of rare Mexican and Mexican-American music recordings dating back to 1905, yet is giving public access to only a portion of the recordings since the remainder of the collection consists of copyrighted works whose ownership remains unknown. An added concern arises from the liberalizing of the process for securing copyright so that post-1989 works are protected even if they bear no copyright notice. Some universities have tried to overcome the problem by digitizing orphans works under principles of fair use. Alternatively, Congress is considering legislation that would allow reproduction of orphan works and payment of a license fee to a collecting society which would hold uncollected funds for a period of years, after which unclaimed works would be made available on an unrestricted basis.