bringing fair use back into the copyright circus
by Nicholas Bramble | June 9, 2010 | Uncategorized | Comments Off
Just as a quick follow-up to Christina’s excellent (and now widely linked!) post examining how the characters of Glee might fare in the real world of copyright law, I wanted to stake out another set of reasons as to why one might find the situation she describes so troubling. It has to do with the intuition that teachers and students who use copyrighted materials in the course of education should be, as one commenter put it, “exempt from obtaining copyrights for performance.”
If you read the fair use statute, you might think that the copyright law’s framers shared this intuition:
“[T]he fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; …”
Perhaps those who access and transform copyrighted materials in the course of educating themselves—and in the course of educating others—are engaged in use that is fundamentally and categorically fair? Even if you don’t interpret the first sentence above to set forth a definitive list of fair use activities, it’s clear that Congress sought to carve out a strong exemption from liability for educational uses of copyrighted works. Based on the fair use statute, it looks as if the question of whether a use occurs in the context of teaching, scholarship, research, or education should be a threshold question, rather than merely one single factor in a broader inquiry. Indeed, Congress later affirmed in Section 110 that the “performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction” is not infringement.
So, then, what’s the worry for glee clubs? Or for that matter, what’s the worry for students who design a wiki around an in-copyright novel; edit that wiki by adding passages from the novel, images from film adaptations of the novel, and excerpts from critical reviews; display their work at an achievement fair; offer the wiki to a teacher who proceeds to share the project with future students studying the work in question; and make the wiki available as an open educational resource to students in other locations?
In brief, the worry has less to do with the text of copyright law, which seems to carve a wide swath of fair educational use, and more to do with the ambiguous ways in which this law has been interpreted. Judges sometimes evaluate fair use claims in complex and unpredictable ways, and lawyers are able to inject ambiguity into categories like “educational purposes” & “face-to-face teaching activities.” As a result, almost every point along the chain of technological and individual actions described above is at least capable of being classified as an infringement of copyright, and thus capable of triggering a fine of up to $150,000 for each instance of infringement.
Let’s be optimistic and assume that there’s a 1% chance of a judge finding willful infringement and assessing the full damage award in each instance: that still represents $1500 worth of risk for each action. Is a school likely to assume this kind of liability? Or is the possibility, however remote, of a crippling damages award going to serve as a fairly strong deterrent for any student or educator considering bringing cultural artifacts or experiences into the learning environment?
Many student projects already require the use and integration of copyrighted content, not to mention the frequent back-and-forth distribution of the projects and software containing this content, both for purposes of collaboration and student evaluation. The formalization of a clear and broad fair use interpretation for the classroom context would dispel the institutional fear and uncertainty surrounding these actions, and would free students and teachers to spend more time exploring, understanding, and recontextualizing materials within a newly opened-up educational public domain. It would be faithful to the statutory text of the Copyright Act. And it would permit us, once again, to conceive of fair use “not as a disorderly basket of exceptions to the rules of copyright, nor as a departure from the principles governing that body of law, but rather as a rational, integral part of copyright, whose observance is necessary to achieve the objectives of that law.”
