Fair Use Week 2022: Day Five With Guest Expert Sandra Aya Enimil

Our final day of the 9th Annual Fair Use Week closes with an important post by Sandra Aya Enimil from Yale University, exploring the critical relationship between fair use and equitable access. – Kyle K. Courtney

Equitable Access and Fair Use

by Sandra Aya Enimil

Working in an academic library, brings many opportunities to interact with librarians, faculty, staff, and students working on amazing research and projects that have local, national, and international impact. One of the most important elements of librarianship is making sure that there is equitable access to content for people who want to use our materials for their scholarship, study, and research. In our increasingly digital world, many institutions of higher education preemptively provide web-based materials equitably to all. Some have done so in response to consent decrees.

Consent decrees (under provisions from the Americans with Disabilities Act) compel universities to create policies and procedures, and to dedicate resources to ensure that disabled members of a campus have access that is equitable to that of non-disabled members. Beyond the web, in many instances, general accessibility to library materials is done well and seamlessly. For persons with disabilities, however, it’s often not so seamless. Access is limited to certain content and sometimes has one or more steps before material becomes accessible for their needs. There is a myriad of reasons for this.

In the United States, libraries are bound under copyright law which provides a mechanism for library operations and the ability to loan and make available purchased or acquired content. For example, U.S. copyright law allows libraries, under section 108, to provide digitized copies for research and private study. Under section 121 digitized copies of published literary and musical works for persons with disabilities.

Broadly speaking, U.S. copyright law provides academic institutions with the authority to create accessible copies of in-copyright works.  Academic librarians often partner with other parts of the institution: information technology, student/staff disability offices to provide support for persons with disabilities. While these partnerships are necessary to verify need and to fulfil accessibility requests for the person waiting to receive the material, it is an extra layer of bureaucracy, time, and effort that non-disabled persons do not have to manage. Additionally, section 121 only allows access for specific types of published content. Why does it matter how many steps a student/researcher with disabilities needs to take to eventually get access? It matter because it often means an extra layer of planning and a lack of serendipity in performing research.

How does fair use fit it into this environment? And how does fair use make access more equitable for persons with disabilities? There are compelling arguments that the fair use provision and Section 121 make it possible to create and distribute accessible materials to qualified users, and to retain and share accessible texts in secure repositories for use in serving future qualifying requests. There is also broad discretion to develop systems to support creating and distributing these texts in accordance with the law and their institutional capacity. Individual academic institutions can also create their own systems and workflow to address the needs of eligible persons.  Or academic institutions can rely on systems like HathiTrust to provide this content. Eligible researchers can use Hathi’s search feature to access millions of volumes of works that have been digitized. The researchers do have to register to receive access, but once that happens, they may search the corpus of content freely and hopefully many of those serendipitous research moments happen.

While section 121 is narrow in scope, fair use expands the type of content that may be made accessible. Fair use allows libraries to make audio-visual works, including films accessible to researchers with audio and visual disabilities by adding captions and audio description. Other works excluded from Section 121 include unpublished works, choreography, pictorial, and sculptural works. The ability to create, distribute, and retain accessible versions of these types of content also relies on fair use. Section 107 and 121 permit an essential workflow. This workflow starts with a request from a student or researcher with a disability. It involves an accommodation specific to the needs of the requestor (remediation) and delivery of an accessible version to the researcher. Finally, it ends with deposit of the remediated version in a secure repository for appropriate future use (including future remediation) in the service of other requestors with disabilities.

Someday, these barriers to persons with disabilities won’t exist and there won’t be extra steps needed to receive the same content as non-disabled folks. But we are not there yet. And while fair use alone does not solve all the issues that make equity difficult for researchers with disabilities, it does provide an expanded scholarly universe beyond narrow provisions. And, hopefully, this provides the ability to dive down a research rabbit hole and happen upon just the thing you need.

Sandra Aya Enimil (she/her) is the Copyright Librarian and Contracting Specialist at Yale University Library. At Yale, Sandra is the Chair of the License Review Team and provides consultation on licenses of all types for the Yale Library. Sandra also provides information and resources on using copyrighted materials and assists creators in protecting their own copyright. Sandra collaborates with individuals and departments within the Yale Library and across campus. Sandra is committed to diversity, equity, and inclusion (DEI) and is interested in the intersection of DEI and intellectual property. 

This blog is cross posted on the Conversations on Copyright at Yale Library Blog: https://campuspress.yale.edu/copyrightconversations/

Fair Use Week 2022: Day One With Guest Expert Kenneth D. Crews

We are delighted to kick off the 9th Annual Fair Use Week with a guest post by the international copyright expert, Kenneth D. Crews, as he predicts the role of fair use in the U.S. Copyright Office’s new small claims court. -Kyle K. Courtney

Fair Use and Small Claims: Getting Ready for the Big Deal

by Kenneth D. Crews

An irony of fair use is that it can be patiently supportive and thoroughly demanding at the same time. It can nurture the individual spirit, and simultaneously require complex litigation strategies. In our daily pursuits, we might be comfortable clipping, pasting, mixing, adapting, and generally engaging with fair use in an enlivened quest for creativity. On the other hand, if ever we had to convince a judge of our legal position, we would become immersed in extensive research and analytical arguments.

That ambivalence of fair use may soon reveal itself with the opening of the new “small-claims court” for copyright infringements.  I and others have written generally about this new quasi-judicial Copyright Claims Board, soon to commence operations within the U.S. Copyright Office. The new Board was established with the passage of the CASE Act, enacted by Congress in late 2020 as part of an appropriations bill. It creates a distinct process for bringing and resolving “small” copyright infringement actions that may come before this new Board and the three Copyright Claims Officers who will rule in proceedings. The Officers can hear allegations of infringement, and they can act on defenses, including fair use.

The Board has authority to award damages, generally capped at $30,000 per proceeding, and the expectation is that the Board will make determinations in common matters where the total dollars at risk are not exorbitant.  The Board may hear cases about scanned and uploaded pages, or movie clips posted to personal websites and on YouTube.  Depending on the exact facts of each claimed infringement, these familiar pursuits could form an ideal context for confrontations over fair use.

Some battles will not actually occur.  A crucial element of the Case Act, intended to buffer it from constitutional challenge, is the broad authority of respondents who are hit with claims to opt out of the system, leaving the original copyright owners with the choice to file the case in the conventional federal courts – exactly the burdensome and expensive option the claimant hoped to avoid.  Opting out will likely be common.  But some cases will nonetheless proceed, bringing fair use to the fore.

Jump ahead several years: The determinations of the Copyright Claims Board are required to be publicly reported.  We might get only brief conclusions. With luck, we might see a dense public record of allegations and evidence, documents and arguments, and the Board’s explanations and rationale. However, the new law states unequivocally that the rulings are not to have any precedential value. That stipulation will do nothing to stop analyses of the Board’s track record and the use of trends and analytics in strategic planning by future parties. Whether we like it or not, in the years ahead, we will be exploring and exploiting the direction that the Copyright Claims Board has taken on the meaning and application of fair use.

The proceedings before the Board may indeed be efficient and individualistic. But the arguments and findings about fair use could easily be as demanding and complex as those found in the court system. Yet the realistic ability to make a sophisticated and persuasive legal argument may be out of balance. The claimant bringing the action could be a large entity with ample legal support, while the respondent may often be that modest user who is experimenting with remixes and fan fiction.

These heady questions about fair use will form the Board’s track record that we will analyze in the years ahead.  The trends and patterns in the Board’s rulings on fair use in the coming years will undoubtedly reveal much about the Board’s proclivities on fair use and offer guidance for future litigants before the Copyright Claims Board. In other words, early proceedings that involve fair use need to move forward with great care. The law tells us that the decisions are not precedential, but they are foundational.  Even in the informal setting of the Board, fair use must not be handled flippantly.

I am not an advocate for test cases. But I do advocate for the power and influence of a strong legal analysis.  The fair use issues coming before the Board must be thoroughly researched and persuasively argued.  Parties need to consider carefully whether their case has the legal bolster it deserves.  If not, opting out may be the right choice.  Parties are allowed to have legal representation, and law students are also permitted to appear before the Board.  Law firms and law school clinics may need to add the Copyright Claims Board to their scope of service.  We are at the start of something new, and fair use needs to be nurtured and protected from the first day that the Copyright Claims Board opens its doors later this year.

Kenneth D. Crews is an attorney and copyright consultant with Gipson Hoffman & Pancione in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.  He is the author numerous publications on fair use, including Copyright Law for Librarians and Educators (4th ed.), published by ALA Editions.

Fair Dealing Week Makes a Home Coming

I am very excited to host our colleagues (and friends), Jane Secker and Chris Morrison, in their first blog post on this platform for Fair Use/Fair Dealing Week. Join Jane and Chris as they explore their roles in the UK copyright space, the differences and similarities between fair use and fair dealing, and reveal the plans for their first full week of fair dealing events happening in the UK! – Kyle K. Courtney

Fair Dealing Week Makes a Home Coming

Photo caption: Jane and Chris in their Periodic Table of UK Copyright Exceptions t-shirts

It’s incredibly exciting that for the first time, the UK is going to be participating in Fair Use Week, or in our case, Fair Dealing Week. As two committed copyright enthusiasts we wanted to tell you about why we decided to get UK universities, libraries, and cultural institutions involved in the event. We also wanted to explain a bit about what fair dealing is, how it relates to fair use, and also why being late to the party isn’t so bad (in fact it provides an opportunity to explore a bit of copyright history). Finally, we have a few exciting free online events happening this week and we’d love to see some of you at these events.

Who are we, and what is our copyright story?

We are Jane Secker and Chris Morrison, two self-confessed copyright geeks who co-founded the website copyrightliteracy.org. We use this to help promote understanding of copyright and host our openly licensed copyright resources and games.

Jane is a Senior Lecturer in Educational Development at City, University of London. She teaches modules on digital education as part of a Masters in Academic Practice. Prior to this she was the Copyright and Digital Literacy Advisor at LSE for over 15 years. Jane is Chair of the CILIP Information Literacy Group, that runs the LILAC conference and a member of various copyright committees in the UK including the Copyright Advisory Panel which is a governance group of the UK’s Intellectual Property Office, and the Libraries and Archives Copyright Alliance.

Chris is currently the Copyright, Licensing and Policy Manager at the University of Kent, responsible for copyright policy, licensing, training and advice. However, he is also to take up a new role starting in April 2022 as Copyright and Licensing Specialist at the Bodleian Libraries, University of Oxford. Chris was previously the Copyright Assurance Manager at the British Library and before that worked for music collecting society PRS for Music. Chris holds a masters in copyright law at King’s College London and his dissertation explored the understanding and interpretation of Section 32 of the Copyright, Designs and Patents Act ‘Illustration for Instruction’ by UK universities.

We first met in 2014, shortly after copyright law had been reformed in the UK and came together to run a series of training sessions for librarians on the updates to the law. We collaborated to create Copyright the Card Game (an openly licensed educational game to teach people about copyright that has been adapted for use in the US, Canada, New Zealand and Australia) and in 2016 our book Copyright and E-learning a guide for practitioners was published. We take a playful approach to copyright education, we a range of copyright t-shirts and even have a podcast called Copyright Waffle, where you can hear us chat to various guests about their copyright story.

Our work has really accelerated since 2020. We have been running a regular webinar series on the topic of copyright and online learning since March 2020, and in November 2020 we co-founded the Association for Learning Technology’s Copyright and Online Learning (CoOL) Special Interest Group. This reflects the growth in interest in copyright in the education sector since the pandemic. It was under the auspices of this group that we got involved with Fair Dealing Week. Kyle K Courtney is the CoOL SIG’s international representative, and we’ve been hugely inspired by Kyle’s work on the Copyright First Responders programme and his championing of copyright exceptions through the continued creation, promotion, and expansion of Fair Use Week. In the last few years we’ve focused a lot of our efforts into helping the education community in the UK understand how copyright exceptions work and their relationship to licenses. This involves grappling with the concept of fair dealing and balancing the risk of using works under fair dealing exceptions against the risk of failing our students by not providing them with educational resources or opportunities to learn by creating work based on the work of others.

Fair Dealing and the origins of Fair Use

When we talk to people about copyright, they usually refer to the more widely known term fair use, rather than the slightly confusingly worded term ‘fair dealing.’ This prompts us to talk about the differences between the two.

Fair use (as I am sure readers of this blog will know) is a legal doctrine in the US Copyright Act, which allows use of copyright material without the permission of the copyright owner, according to a ‘four factor’ test. It’s traditionally considered to be a more flexible and broader doctrine than the delimited UK concept of fair dealing. However, we will see they come from the same origins and do serve a very similar purpose, of providing balance in copyright laws by limiting the otherwise expansive exclusive rights conferred on rights holders.

The common origin of both fair and use and fair dealing comes from English court cases of the 18th century which considered the extent to which abridgements of literary works were fair. These ‘fair abridgement’ cases are described by Professor Ronan Deazley with his customary verve and flair in the article ‘The Statute of Anne and the Great Abridgement Swindle’.[i] The relevance of them to the US doctrine is also described in Matthew Sag’s seminal article ‘The Pre-History of Fair Use’.[ii] This common history between fair use and fair dealing is reflected in the fact that Commonwealth (i.e. ex-British colonial) countries such as Australia, Canada, New Zealand and India also have fair dealing provisions.

However, despite their common ancestry there are some key differences. Unlike fair use, fair dealing is not defined in the UK statute – this means that its meaning comes almost entirely from a reading of the case law. In addition to this UK fair dealing is not described as a ‘user right’ in the same way that fair use is in the US, or in the way that fair dealing is under Canadian law. Another difference is that the concept of ‘transformative use’ as defined by Justice Leval[iii] has not been adopted by the British courts when looking at fair dealing, in the same way as has been done in the US. And finally a key difference is that UK fair dealing provisions can only be applied to four specific types of activity – quotation (including criticism and review and news reporting), non-commercial research and private study, illustration for instruction (i.e. teaching) and caricature, parody and pastiche.

But even with these differences, fair use and fair dealing share the same aim in determining how a ‘fair and honest minded person’ would deal with a copyright work if they didn’t have permission. When we play copyright the card game, we ask people to consider the following questions associated with fair dealing:

  • Does using the work affect the market for the original work? Does it affect or substitute the normal exploitation of the work?
  • Is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount?

Those familiar with the four factors of fair use will find these questions looking very familiar. And in fact Professors Tanya Aplin and Lionel Bently have recently argued that the Berne Convention creates a ‘Global Mandatory Fair Use’ requirement that requires all jurisdictions to adopt fair use or an equivalent broadly framed fair practice exception.

Whilst we find the latest cutting edge scholarship fascinating from our perspective of being copyright geeks, we are also aware that as educators we need to frame these issues in ways that communities are able to engage with. We have noticed that teachers and lecturers often feel uncertain about how copyright works, leading some to avoid using specific content for teaching and others to believe that anything goes. We also note that they often want to be given a simple and clear answer on whether their proposed activity is lawful – something which rights holders often refer to as the benefit of providing content under license.

We believe it’s important that we do make use of the flexibility provided by copyright exceptions as a vital supplement to licenses. Obtaining permission or a license for a work is not always practical, for example of when a lecturer uses an image in a slide to illustrate a point in their teaching, or shows a clip of a video, or may need to quote some text. We tend to advise those wishing to rely on a copyright exception to weigh this up by looking at whether licenses are available, whether getting permission is feasible and how much of an appetite they, or their organisation have for risk.

We are therefore absolutely delighted to be fusing all of these different aspects of fair dealing together in a fantastic programme of events. We will be hearing from leading UK scholars, researchers, teachers, film makers and a host of others across multiple cultural and creative organisations.

UK Fair Dealing Week Overview

Photo Caption: Jane and Chris chat to Kyle Courtney about participating in Fair Dealing Week

Working with colleagues in the ALT Copyright and Online Learning Special Interest Group (CoOLSIG), we have a series of events happening this week that both celebrate and provide information about the UK’s fair dealing exceptions. We hope to see some of you at one or more of these free online events, and may fair use / fair dealing be with you at all times:

Monday 21st February

  • The online launch event is being hosted by Chris Morrison and Dr. Jane Secker. It is also featuring Kyle K Courtney and Dr Emily Hudson at the Institute of Advanced Legal Studies (IALS), 6-7.30pm (GMT) on Zoom. The launch event will present the basic principles of Fair Dealing in the UK and focus on best practice, along with directing attendees to shared resources, including new guidance from the IALS.  Book here.

Wednesday 23rd February

Thursday 24th February

  • SCURL Copyright and Other Legal group, Fair Dealing Coffee Morning. The Challenge of Using Copyright Exceptions for Global Online Teaching with Debbie McDonnell, British Council. 10-11am (GMT). This informal online event will be kick started with a presentation from Debbie, where the challenges around using the Fair Dealing exceptions outside the UK will be explored, along with assessing the associated risk, and best practice. This will be followed up with Q&A and discussion session.  More details and booking.
  • Bloomsbury Learning Exchange (BLE) Fair Dealing Panel Discussion. Primarily aimed at BLE members, join librarians and learning technologists to discuss what fair dealing means in practice. Held online. 30-4pm (GMT). Please contact s.sherman@ble.ac.uk to book a place.

__________________________________

[i] Ronan Deazley, The Statute of Anne and the Great Abridgement Swindle, 47 Hous. L. Rev. (2010). Available at: https://houstonlawreview.org/article/4174-the-statute-of-anne-and-the-great-abridgement-swindle

[ii] Sag, Matthew, The Pre-History of Fair Use, 76 BROOK. LAW REV. 1371 (2011). Available at: https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1157&context=facpubs

[iii] Pierre N. Leval, Toward a Fair Use Standard, Harvard Law Review Vol. 103, No. 5 (Mar., 1990), pp. 1105-1136 (32 pages) Published By: The Harvard Law Review Association https://doi.org/10.2307/1341457 https://www.jstor.org/stable/1341457

Fair Use Week 2021: Day Five With Guest Experts Meredith Jacob and Will Cross

For our final post of the 8th Annual Fair Use Week, we are very excited to have two of the authors of the recently launched Code of Best Practices in Fair Use for Open Educational Resources, share their insights on the process and development of this incredible publication. Enjoy! – Kyle K. Courtney 

Creation is Not a Closed Book Exam: Developing the Best Practices in Fair Use for Open Educational Resources 

by Will Cross and Meredith Jacob

You can learn a lot from which questions people ask you, and which they don’t. As educators and advocates for building openly-licensed textbooks and other open educational resources (OER), we spend a lot of our time at conferences and workshops talking about how to understand and use Creative Commons licenses. As we’ve done presentations over the past few years, however, we noticed that attendees generally listened politely to our presentation and then spent the entire question and discussion period asking pointed questions about how fair use fits in.

As fair use advocates, we love these questions – what’s more fun than digging into a juicy fair use discussion! But bringing discussions about fair use into the open education community raised a second set of questions from creators and especially gatekeepers, and we needed to give people a way forward that went beyond a quick conference Q&A but still didn’t promise individualized legal advice. Some open educators felt unprepared to analyze fair use in particular contexts. Many felt apprehensive about fair use as a whole, often based on anxieties grounded in copyright folklore left over from the era of Napster and LimeWire. Strikingly, many institutional gatekeepers felt unable to make broad, uniform decisions about whether and how to acknowledge fair use at all. While they recognized that some authors were in fact relying on fair use sub rosa, without any tool for systematically understanding and applying fair use they felt that their options were either “allow anything” or “(pretend to) allow nothing.”

Of course, the reality is that every textbook relies to some extent on fair use. It would be practically impossible to build a textbook – certainly a good textbook – without quoting anyone, critiquing anything, or illustrating ideas with text, images, music, or other materials from the real world. Creating anything, including OER, is not a closed book exam. Good pedagogy explicitly builds on the work that has come before and great pedagogy connects to the real world and the lived experiences of the learners it is meant to engage.

Our job, then, was to understand what type of guidance the community needed in order to find a happy medium between “no fair use allowed” and “anything goes.” Fortunately, we had a great tool for exactly this type of work: the Codes of Best Practice in Fair Use. For two decades, the Codes of Best Practice have proved to be an effective tool for many communities to document the repeated professional situations in which they can and must rely on fair use. The Codes are built on a framework that aligns fair use decision making with both the professional mission of the creators and the predictable legal principles of fair use law. These Codes have worked for such disparate communities as documentary filmmakers, librarians, poets, and dance archivists, just to name a few.  

As when creating past Codes, we began with a series of interviews with stakeholders across the community. These interviews helped us understand where questions about fair use were creating friction for OER creators, where authors were regularly relying on fair use, what parallel concerns such as accessibility and equity demanded attention, and finally where OER creators were getting information, advice, or even hard rules about the copyright decisions they were making. By early 2020 we felt ready to begin the focus groups that are the signature work of creating Best Practice documents. We felt inspired, connected, and ready to go. Nothing could stop us now . . .

Obviously 2020 didn’t go the way anyone expected, and we paused the process to support educators making the rapid move to fully online instruction with a series of webinars on building resilient materials for teaching and learning. This series also began with a question: “can I read aloud to my students in an online classroom?” The answer, of course, is “reading is most definitely allowed!”

Significantly, what we thought would be a brief detour turned out to be a critical reminder for all of our work, especially the Best Practices: “it’s always an emergency for someone.” While the pandemic brought into focus acute questions about rapid shifts in pedagogy and making do with substandard wifi, for many learners those challenges are chronic and exist beside and in the context of systematic injustice, inaccessible design, and deep digital divides. Relying on fair use as a tool to enable access seemed urgently necessary in that moment of crisis. But those needs are no less urgent and fair use is no less essential for students who face perennial challenges based on inequity and inaccessibility. 

As we returned to developing the Code, this core principle continued to animate our work and to resonate deeply in focus group discussions, particularly when we discussed the inadequacy of linking out rather than relying on fair use to reliably incorporate materials. By the late fall we had completed eighteen focus groups and were pleased that our outstanding team of legal reviewers enthusiastically supported the document we facilitated in partnership with the open education community. 

As we celebrate Fair Use Week 2021 we’re excited to share the Code of Best Practices in Fair Use for Open Educational Resources. As with all of the Codes, this resource describes an approach to reasoning about the application of fair use to issues both familiar and emergent but does not provide rules of thumb, bright-line rules, or other decision-making shortcuts. Using the Code to develop OER is also not a closed book exam. Instead, it is designed to empower you to bring together a team of educators, librarians, publishing experts, and others to develop resilient, inclusive OER that engages with and reflects the work that has come before and the world that learners are preparing to enter.

You can learn more about what the Code says, how it works, and how it fits into a global body of educational exceptions in this recorded webinar. We’re also developing a series of community-specific events for open educators, librarians, and legal gatekeepers such as offices of general counsel over the coming weeks. We invite you to work with us to develop guidance and models for applying the Code in specific disciplines and communities through workshops and project development. We’re just getting started with the really fun stuff and we know your questions and real world examples will help make this resource even more meaningful and exciting.

 

Meredith Jacob serves as the Assistant Director for Academic Programs at the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law. Her work includes student outreach and advising, curriculum coordination, and academic research and advocacy. Currently her work also includes research and advocacy focused on open access to federally funded research, flexible limitations and exceptions to copyright, and public interest in international intellectual property. Previously, Meredith worked with state legislators on a variety of intellectual property and regulatory issues affecting pharmaceuticals and the privacy of prescription records.

Will Cross is the Director of the Copyright & Digital Scholarship Center in the NC State University Libraries, an instructor in the UNC SILS, and an OER Research Fellow. Trained as a lawyer and librarian, he guides policy, speaks, and writes on open culture and navigating legal uncertainty. As a course designer and presenter for ACRL, SPARC, and the Open Textbook Network, Will has developed training materials and run workshops across the US and for international audiences from Ontario to Abu Dhabi. Will’s current research focuses on the relationship between copyright and open education. In addition to this project he serves as co-PI and co-developer of the IMLS-funded Library Copyright Institute

Fair Use Week 2021: Day One With Guest Expert Kenneth D. Crews

We are delighted to kick off the 8th Annual Fair Use Week with a guest post by the worldwide copyright expert, Kenneth D. Crews, as he contemplates an important question on the most recent U.S. copyright legislation. -Kyle K. Courtney

Can Fair Use Survive the CASE Act?

by Kenneth D. Crews

When Congress thinks of COVID, it seems to also think about copyright.  Congress made that connection at a critical moment this last December.  Embedded in the appropriations bill that gave emergency funding to citizens in need, was a thoroughly unrelated provision establishing a copyright “small-claims court,” where many future infringements may face their decider.  The defense of fair use will also be on the docket.

The new law, known as the CASE Act, establishes the Copyright Claims Board within the U.S. Copyright Office, where parties may voluntarily allow their infringement cases to be heard.  A copyright owner, as “claimant,” may choose to commence legal action in the new agency.  The user of the work, or the “respondent,” may allow the matter to proceed or may choose to opt-out, effectively sending the case back to the copyright owner to decide whether to drop the matter or file a full-fledged lawsuit in federal court.

 

 

Realistically, this new court-like Board may be a dark hole where cases mysteriously disappear.  Some claims will be filed and then bounced as the respondents opt-out.  Other claims will be launched, and respondents will simply vanish or fail to understand or react at all, sending the matter into default.  When a proceeding finally comes to fruition, the parties will investigate and present evidence, and the three appointed Copyright Claims Officers will determine the outcome of each case.  Any claim of infringement will be subject to relevant defenses, such as expiration of the copyright, as well as fair use and other copyright exceptions.

The Copyright Claims Board will not open for business until late in 2021 at the soonest, but this is a good time to contemplate how fair use might play out.  Think of these stages and possibilities:

 

Raising the Defense. A proceeding begins with the filing of a claim and the formal delivery of notice on the respondent.  The first mention of fair use (or any other copyright exception) will typically appear in the respondent’s reply.  But surely the claimant will foresee fair use asserted in many of these small-claims proceedings.

Gathering the Evidence. Courts and commentaries regularly remind us that fair use is a fact-specific matter, and the details of each case can determine the outcome.  Staff attorneys working for the Board have the authority to investigate a matter, and the Officers have the authority to allow the introduction of evidence.  Think of that fourth factor of fair use: the effect of the use on the market for or value of the work.  A court will often need confidential economic data about the sales of the work in question and the revenue earned.  The Copyright Claims Officers, parties, and staff attorneys do not have clear authority to compel disclosures and discovery.  They can “request” documents and information.  As a result, the Board could frequently be called upon to decide questions of fair use, but without the needed evidence.  The choices at that point will be far from satisfactory.

Reporting the Decision. The Board is required to make a public disclosure of its decisions and the legal basis for rulings, but the statute includes few other details.  The public announcement of a ruling might be little more than a conclusion, leaving only by implication the resolution of the fair use argument and the reasoning.  On the other hand, the ruling on fair use could be an elaborate legal analysis.  Because the parties have limited ability to appeal a ruling, the Officers might not feel the need to hand down complex opinions.

Depth of the AnalysisOn the other hand, all judges know that their rulings on fair use are convincing to parties and lawyers only if their analyses are solidly persuasive.  The same will be expected of the new Copyright Claims Officers, and for that reason they might want to pursue trenchant examinations of fair use.  The Officers will also be looking to the parties for their arguments, and the parties are permitted to be represented by attorneys (or even by law students).  Keep in mind that the typical proceeding will involve a modest use of a single work, and such users will also typically not be in position to retain specialized and expensive legal counsel.  Consequently, the legal analyses presented to the Officers will often be far from equitable as between the parties.

Creation of Precedent. Decisions from the Copyright Claims Board will not be binding on anyone other than the immediate parties, and they officially will have no precedential value in later actions in a court or before the Board.  Yet conventions of lawyering and the inevitability of human reasoning will surely press to the contrary.  As the Board builds a record of rulings, the outcomes and the reasoning will undoubtedly be fodder for scrutiny and statistical tabulation.  Individual rulings will in some manner be referenced in later proceedings.  Analyses of trends and patterns will be pursued for their scholarly value and as insights for parties and attorneys thinking about the next case to come before the new Board.

Can fair use survive in this small-claims Board? Technically, the answer is definitely yes. However, fair use may also be vulnerable to distorted determinations, resulting from the lack of critical evidence, the pressure to manage a growing roster of legal proceedings, and the inequities of legal representation. Until the court can demonstrate a record of wise and effective rulings on fair use, any party to a claim that is likely to hinge on an innovative or nuanced question of fair use would probably we wise to opt-out of small claims and send the case to settlement or federal court.

Kenneth D. Crews is an attorney and copyright consultant in Los Angeles, and he was previously a faculty member and copyright policy officer at Indiana and Columbia Universities.  He is the author numerous publications on fair use, including Copyright Law for Librarians and Educators, published by ALA Editions. The publisher has kindly made the new fourth edition of the book available at half price during Fair Use Week.

Fair Use Week 2016: Day One With Guest Expert Kenneth D. Crews

FUW Logo OSC

 

Welcome to the 3rd Annual Fair Use Week hosted by the Harvard Library Office for Scholarly Communication!  We are proud to once again be hosting a week full of activities, celebrating Fair Use through expert posts, videos, “Fair Use Stories,” and a live panels on Tuesday Feb. 23rd, Wednesday, Feb. 24th, and Friday, February 26th.  For more information see http://bit.ly/fairuseweek16

We are delighted to kick off this year’s celebration with a post by Kenneth D. Crews.  Crews is an internationally recognized expert on copyright, libraries, and fair use.  

 

Fair Use: A Place in the World

by Kenneth D. Crews

Like so many scholars and commentators from the past and into the future, I have made the familiar observation that fair use is a distinctly American doctrine.  We trace its origins principally to an 1841 court decision handed down by the brilliant and influential Justice Joseph Story.  We repeat these chronicles and adages because they are among the essentials of fair use doctrine.  Fair use makes especially good sense in a legal system built on the adaptability of the common law and that fosters enterprise and creativity; Justice Story did articulate factors that are fundamental to our law today.  Indeed, I would dare say that fair use is not only about innovation, but it is also about diversity and business growth – hallmarks of American society.

It may, therefore, be with a bit of pride and confidence that I watch fair use become an increasingly international doctrine.  I am not trying to jingoistically unveil an American rule for all the world.  But I am comfortable in saying that flexibility in copyright law encourages creative scholarship, nurtures modern art, enables search engines for the web, and empowers teachers and students to pursue innovative teaching and learning.  Fair use also has proven to be downright practical.  It avoids an unduly strict reading of copyright in order to allow socially beneficial uses to prevail over often formalistic claims of copyright infringement.

The benefits of fair use have become increasingly vivid in an era of new technologies, diverse copyrighted works, unpredictable uses, and sometimes unstoppable pressure to experiment and explore.  As a result, this distinctly American doctrine has been invited into the law of a growing list of countries.  It has proven desirable, practical, and even necessary to get good things done.

In reality, fair use has a close foreign cousin, the doctrine of “fair dealing,” long part of copyright law in the United Kingdom and in many former British colonies.  Fair dealing has the virtues of flexibility, but it is often statutorily confined to specific applications such as research and education, so fair dealing would not likely sanction appropriation art or reverse engineering of software.  Moreover, while the factors in the fair dealing statutes may be similar to the fair use factors, courts have not given them the robust interpretations we find under fair use.  The more fluid application and scope – the “open norms” of fair use – continue their allure.

Bernt Hugenholz and Martin Senftleben have written brilliantly on court rulings that have been handed down in recent years the European Union countries that do not have fair use, but where the courts strive to find some means to infuse flexibility into national copyright laws.  Jonathan Band and Jonathan Gerafi in 2013 compiled in an important report the various fair dealing and fair use statutes found in dozens of countries.  Their study makes clear that a surprising number of countries are enacting statutes embodying language essentially identical to the American statute on fair use.

Fair use takes other routes, too.  The international nature of commerce and communication means that courts in one country often need to apply foreign law to decide cases, where events occur in multiple countries.  A court in Paris, for example, applied American fair use in a case against Google, although that ruling was overturned on appeal.  But just last year, a British court heard testimony from US experts and handed down a detailed ruling on fair use as applied to vintage videos of a Beatles concert.  Fair use, or some variation on it, is finding a home in diverse parts of the world.

That list is growing.  As I have studied copyright around the world, I find an escalating desire for fair use in many countries.  Not everyone will be enamored that fair use facilitates digitization for Google Books and the appropriation art of Richard Prince.  However, on a daily basis, fair use supports education, fosters business ingenuity, and opens technological enterprise.  It offers much to like.

In June of last year, I completed a comprehensive study of copyright exceptions applicable to libraries and archives for the World Intellectual Property Organization.  As I analyzed statutes from all 188 countries that are members of WIPO, I kept watch for any indications of fair use or variations on the familiar four factors creeping into national law.  Some of my findings on that score parallel the 2013 study by Band and Gerafi mentioned above.  In the context of the WIPO study, however, the language and spirit of fair use became a vital complement to library statutes that are often limited to specific uses under detailed conditions.

Diverse countries such as Israel, Liberia, Philippines, South Korea, and Sri Lanka are adopting the fair use almost verbatim from the U.S. statute.  A few countries go their own direction.  Laos enacted copyright law recently in 2007, amended in 2011, which includes a fair use reference (Article 111), but with sparse guidance from the statutory language.  A few Latin American countries (Dominican Republic, Ecuador, Guatemala, and Honduras) have a statute labeled “fair use,” but the substance is based on the treaty language of the “three-step test.”  While bringing that treaty language into domestic legislation raises a host of concerns, the effort to infuse some flexibility into the statutory exceptions and find appropriate local meaning of fair use gives much to applaud.

This quest for fair use around the world is no accident.  It is demand.  The demand is from public citizens who want to improve teaching and research.  It is from business leaders who want to build innovative software and develop crucial databases.  It is from publishers who need to include images and other materials in their new books and journals.  As I have visited distant parts of the world to talk about copyright, fair use is almost certain to jump into the conversation.  I have found myself in deep discussion of fair use possibilities in such places as Nepal, Armenia, Colombia, Ecuador, Finland, Azerbaijan, Nigeria, Kuwait, Uruguay, and many more destinations.

Fair Use Week may be a distinctly American holiday.  It probably already involves shopping and costumes.  But recent events demonstrate that fair use and its celebrations are quickly becoming a worldwide movement.

 

Kenneth D. Crews is based in Los Angeles, where he is of counsel with the firm of Gipson Hoffman & Pancione and represents universities, publishers, authors, research institutions, and many other clients on copyright and related matters.  Dr. Crews is also a faculty member in the Munich Intellectual Property Law Center and at Columbia Law School, and he is the author of Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions (ALA, 3rd ed., 2012).