I got a bit of a shock yesterday, right about closing time (of course). I got an email message forwarding a short essay by Duke University Law School's James Boyle, The inefficiencies of freedom. I've read many works by Boyle and always find his analysis to be thoughtful and thought-provoking. He's a strong defender of the public domain and I must admit that I generally agree with his opinion that the balance embodied in the copyright act has tipped too far towards the interests of copyright owners. As a result, I was stunned to see that he impliedly labeled as irresponsible large universities like mine that might consider including among the many sources we use to provide legal access to educational materials CCC's new academic license (a form of blanket license, as opposed to a transactional license based on individual works used). Somehow this license will sweep away all of fair use, as though one couldn't thoughtfully conclude that paying for permission was in many cases the right thing to do because a good part of what we do is not fair use. He easily equated fair use for creative uses (parody, criticism, commentary) with fair use for the massive duplication of works created, in many cases, just for our higher education market. I'll address that distinction in more detail below.
But next week I am going to have to go though his piece, sentence by sentence, in order to explain to my client why I don't believe it's irresponsible to consider, among the millions of dollars worth of databases we subscribe to, the tens (maybe hundreds) of thousands of dollars worth of electronic books we provide access to, and the tens of thousands of dollars in transactional license fees we pay for permission to duplicate works beyond what we consider fair, adding a payment to the CCC for, in time, pretty much the same works we license transactionally now. If anyone thinks we can turn back the clock on this transition to new models of content distribution and use, I respectfully disagree.
We license databases in part so that our faculty can provide access to their contents to students in connection with class assignments. We license ebooks in part for the same reason. We pay permissions expressly for the same reason. We do this because everything we do is not fair use, not in my book anyway. I agree that some part of our duplication and distribution of others' works is likely fair use, and we have our policy that describes what that part is. But it's not all fair use.
Because I do not believe everything we do is fair use, as an advisor to my client, I can't responsibly advocate that we avoid paying permissions when our uses exceed what we have determined is fair use, not where there is such a mature, efficient market for licensed uses provided expressly for higher education. As much as we may dislike the fact that the market for permissions and licensed works has been held numerous times to negatively affect the exercise of fair use, that is how the cases involving systematic duplication and distribution have gone. Further, I don't believe our not making a profit on these copies will completely flip the results of those types of cases.
Boyle doesn't represent a university as its copyright counsel. I'm pretty sure he'd insist his was not legal advice if asked directly. If it is not legal advice to a client who's counting on him to give his best estimate of the risk of a course of action, what is it? It strikes me as an emotional plea more than an intellectual argument.
Boyle is singling out, as incompatible with fair use, this particular way of paying for uses we make of others' works. He's afraid that if your university just writes a check to CCC for, let's say, $100,000, so that all the works that are covered by the license (the "repertoire") can be used in the typical ways we use such works in connection with classroom assignments without having to report how many copies were made of which particular works (that is, efficiently), it becomes easy to ignore the question of whether a particular use is a fair use. Who cares whether it's fair use or not? And Boyles' concern is that if we don't care about fair use here, fair use will disappear altogether. Sounds logical, except that fair use is not a monolithic all or nothing proposition.
The fair use test comes out differently depending on the facts about each use. His argument is not that different from saying that if we don't rely on fair use to copy an entire book, we'll lose the right to quote a single line from a book. Those two things are qualitatively, not just quantitatively, different. Creative uses and duplicative, iterative, plain old copying and distributing uses are very different and the courts have consistently recognized that. The kinds of uses that might be refused by the copyright owner, those where we most need to rely on fair use, creative, critical, scholarly uses, are qualitatively different from plain old copying. The recent "Grateful Dead" case illustrated this kind of discrimination quite nicely. Even in the face of evidence of a market for permission to do precisely what the defendant wanted to do, the court upheld fair use for a creative purpose. On the other hand, we see cases where there's massive copying and distribution, but *no* viable market for permission (the Google/Perfect 10 case), and even where profit is involved, the court upheld fair use. These cases say to me that creative uses have a strong claim to fair use; even duplicative uses without a market for permission have a strong claim to fair use. But duplicative uses where there is a functional, efficient market for permission are not enjoying the same strong claim in the courts. I don't think the courts are going to begin any time soon to paint with the broad strokes that Boyle fears.
I too believe that we have to draw a line in the sand about fair use. For example, I greatly admire the effort that has been made to address the "permission culture" developed in the documentary film industry and think that kind of effort should be made in industries that rely on the use of images, such as art history publishing. I just don't agree with Boyle about which side of the line our systematic, massive copying and distribution of classroom materials falls on. In theory, maybe some time in the past, it all, or some large part of it, fell within fair use. But with today's markets for licensing and permission, and courts that are all over that concept when it comes to this kind of use, I have come to believe that that time has passed. There are cases where I still feel we reasonably rely on fair use for classroom materials, but they are a small percentage of all our uses.
I don't think Duke University is asking Boyle to advise it about liability. But even if Boyle were Duke's copyright counsel, Duke will base its decision about what to do on many things in addition to its fear of, or fearlessness about, liability. It might, if it wants to, consider whether it believes that all fair uses will be lost if an efficient market for permission to systematically make and distribute copies of classroom materials further develops. I would hesitate to call Duke's decision irresponsible if it decides it doesn't believe that.
What do you think?
Comments (3)
I agree with you that the courts still seem capable of making distinctions based on the underlying facts of fair use cases -- though our uneasiness is understandable in an era of excessive copyright control. And I agree that the existence of a functional licensing mechanism for textual works in the CCC has changed the ground we operate on when it comes to pure duplicative copying, whether we like it or not; I also appreciate your recognition that this is not the case (yet) with image licensing, where the only functional and reasonably available licensing mechanisms are geared to commercial, for-profit uses and not educational ones.
The part of Boyle's argument that I find most compelling is contained in his final paragraphs. If the wealthiest educational institutions take out an annual CCC license, who with the adequate legal/financial resources will be left to fight for those duplicative uses which MIGHT be considered fair? For instance, some institutions don't pay licensing fees for repeat uses of material (e.g., a single article from a scientific journal) if they own a lawfully acquired copy. I personally think there is a reasonable argument to be made that such repeat educational uses don't necessarily require permission, but who will be left with a stake in that argument besides those institutions who cannot afford the annual CCC license and who presumably also don't have the wherewithal to defend themselves against a legal challenge?
It seems like it all comes down to how the CCC will determine the cost of its annual license, and whether it will be reasonably affordable for institutions with fewer financial resources. I hope the CCC and the rightsholders they represent recognize that it is in their own interest to make the annual license a realistic possibility for such institutions, but the pessimist in me doubts they will. After all, the only variable currrently affecting CCC fees in pay-per-use transactions for e-reserves is the number of students enrolled in the course. But charging the same fee for posting an article in e-reserves for a course with 50 students at Harvard or even at a large public university like the Univ. of Calif. as you would charge for posting that same article for a course with the same number of students at a local community college does not strike me as a reasonable approach.
If the CCC does not adopt a realistic sliding scale for their annual license to account for these significant institutional differences, then we're at the mercy of the courts in determining whether the existence of an exorbitant (relatively speaking, depending on the institution and its budget) blanket license constitutes a "reasonably available" mechanism -- assuming, that is, that the defendant institution can afford to even make it to court!
Posted by Rick Davis | July 9, 2007 1:13 PM
Posted on July 9, 2007 13:13
As policy advisor for library & information services at Middlebury College, I was the primary contact with CCC as a 'charter member' of the new academic repertory license subscription program during 2006/07, and so I comment from that perspective.
I have talked with faculty and library colleagues at Middlebury and at other colleges about the perception of giving up fair use rights by adding and utilizing one more content licensing service within the array already deployed on our campuses. I do not believe that we necessarily give up all our fair use rights, though, in using the new CCC program.
Why? Perhaps most simply, the license agreement, as I read ours during the trial phase of the program, does not preclude one from using a fair use determination - rather than the license - in "re-use" of material on a course web site or learning management system.
The license does potentially offer certain benefits - some tangible, some less tangible - that I believe should be considered.
Potential cost saving. Although I do not know how the license will be priced for various institutions, for us this first year, we paid less for the license than the total amount we would have paid for permissions for individual titles [covered by the license] that were included in our printed course packs, for multiple articles from a single issue of a journal, and for multiple chapters from a single book that were digitized for use on our E-Reserve system. (The license was discounted this first year because CCC had relatively few publishers signed on to the program when we began).
Work flow. The ease of verifying a title that is covered by the license is simple, should you have a question about using a significant portion of a work that goes beyond fair use. As more publishers and publications are included in the program, eventually we may envision a time when we no longer go through the steps of submitting payment on an article-by-article basis. Depending on the scope of your operation and the types of titles used, colleges and universities may find simple economies in this type of program.
Costs of potential litigation. Remember Cornell just a year ago? The license covers significant amounts of material placed on E-Reserve or learning management systems, or even articles shared via email among your staff (clearly not a "class room use"), as long as you don't copy an entire journal issue or book.
I think I'll never forget a moment in a UMUC Center for Intellectual Property online course a year or so ago that motivated my personal interest in exploring the licensing model. During the discussion, a publisher suggested that some peers considered any digital re-use of published scholarly press articles or chapters to fall beyond fair use: permission should be sought (and fees paid), even for a single chapter or article. As shocking as that statement was to me, it made me realize how different publishers' and academics' visions of the world can be. Could there not be a way of expediting access to the digitized content demanded by our faculty and students, without the challenge of case-by-case fair use determination - in itself a barrier, a wall, indeed, something that seems often to hinder rather than enhance collaboration among libraries and our users, as well as libraries and publishers?
Perhaps the "intangible" benefit may be that with the academic licensing program, we (those in the library or elsewhere on campus traditionally charged with monitoring copyright) can gain the confidence of publishers as well as our scholarly users, moving beyond our perceived roles as copyright abusers or copyright police? Is that a better vision for our image and role in the community.
Is that worth the actual cost of the license? of 'giving up' fair use? The answer may not be the same universally across our institutions, yet I think it deserves analysis and consideration, and reflection over time.
the above comments reflect my personal views, and not those of Middlebury College
Posted by Jeff Rehbach | July 10, 2007 1:50 PM
Posted on July 10, 2007 13:50
Personally, I think it's another move towards a permissions culture. Payment is certainly necessary for some of the copying we do, but I also wonder whether or not we're going to pay for the same materials over and over again. I'd also wonder whether or not the license restricts fair uses in any way. But that's why I trust you to evaluate it. ^_^
Posted by Carlos Ovalle | July 10, 2007 9:05 PM
Posted on July 10, 2007 21:05