Fair Use

The Berkman Center for Internet & Society at Harvard Law School releases a white paper: “The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age.”

The paper can be downloaded without charge at http://cyber.law.harvard.edu/publications

The paper explores whether innovative educational uses of technology, especially for teaching, are hampered by current copyright law. The paper found that copyright law along with business and institutional structures shaped by the law are major obstacles to “realizing the potential of digital technology in education.”

I went to a presentation by Wendy Gordon “Circularity in Fair Use: The Puzzle of Foregone License Fees" (http://www.bu.edu/law/faculty/profiles/resume/full-time/gordon_w.html) yesterday. Her presentation was about licensing and Fair Use, and she called our attention to the Graham Archives case. Her position is that the Graham case clarifies the Michigan Document Services case. In Michigan Document Services (MDS), a copy shop in Ann Arbor was sued for producing course packs. The use was held to be not a fair use. Part of the court’s reasoning was that if licensing was available for the material in the course packs, then it should be used, or otherwise, the availability of licensing makes the use less likely to be a fair use. Gordon talked about how that is problematic, because any use potentially impacts a potential market, even if that market does not yet exist. One of her examples was that if someone in your neighborhood had major landscaping done such that your house increased in value by $5000.00, and you gave the neighbor a cut of $2000.00 of that $5000.00 because of the increased value, could the neighbor then sue all the other neighbors because they too had benefited from the landscaping? This is potentially a scenario that could come out of mandatory licensing replacing fair use, she said.

This page will eventually hold links to sample intellectual property policies: institutional policies or contracts on IP that employees sign, journal policies on fair use, etc.

The links will actually be to substory pages that contain commentary (at least a rough summary) of the policy plus a link to the actual policy in a new window).

• Michigan Technological University: "In general, all employees are required to assign the rights of any invention they create while they are employees at Michigan Tech. Books, articles, manuscripts, and works of art (except to the extent that they contain proprietary information related to inventions or computer software) are not included in these policy under Michigan Tech Operating Procedures 11.1."
• Intellectual property policy developed by the Board of Regents of the University of Minnesota (also alluded to here)
• Virginia Commonwealth University IP policy
• Purdue University's Policy on Intellectual Property, Office of the President, Executive Memorandum No. B-10

This page will hold material about Fair Use (including pointers to subpages).

In his 2000 book for university leaders and stakeholders, Managing Technological Change: Strategies for College and University Leaders, Anthony Bates remarks that "nowhere is there more confusion, misinformation, and paranoia than in discussions of intellectual property and copyright surrounding the development and use of digital materials" (107).

Another outcome has been overwhelming amounts of Fair Use resources, arguments, and materials on Fair Use in educational contexts--both in print and online, and by a wide range of people and institutions who promote distinctly different readings of Section 107 of Copyright Law, Limitations on exclusive rights: Fair Use in which certain noninfringing uses of copyrighted materials may be allowed and protected based on these four factors:

• The Political Economy of Commons by Yochai Benkler
• The Copyright Cage by Jonathan Zittrain
• Illegal Art
• Seth Finkelstein
• Free Culture Wiki
• Wikibooks
• Wikisource
• Authorama: Public Domain Books
• Electronic Frontier Foundation
• Chilling Effects Clearinghouse
• bIPlog
• Commons-blog
• Copyfight
• Creative Commons Weblog
• Creative Commons
• Frank Field
• Infocult
• infoAnarchy
• Lawrence Lessig
• Napsterization
• Sivacracy.net
• Project Gutenberg
• Berkman CIS
• Creative Commons
• Digital ID World
• Digital Library of the Commons
• First Monday
• Howard Rheingold
• hypermedia research centre
• JoDI
• JOHO

The 2002 Computers, Freedom, & Privacy Conference (finishing up on April 19) includes a session on "Fair Use By Design". Included are discussions of

Here's the workshop overview:

Of expanding significance within the technological landscape are digital rights management tools. These tools raise a host of complex questions about the free exchange of information, individual privacy, freedom to publish and to innovate - questions, in other words, about the impact of technology on the exercise of legal rights. The workshop will explore the impact of digital rights management tools specifically on fair use. The workshop will use short framing presentations to stimulate dialogue among the participants and audience.

Although Digital Rights Management (DRM) software (e.g., digitial watermarking, etc.) has been discussed in many places, the discussion here include specific sessions on using DRM software to allow fair use, a unique proposition. - goto