One of the strengths of the copyright system is the acknowledgement that although authors have rights to their work, others can use copyrighted work when it falls within the boundaries of Fair Use. Whether articulated as a right to use copyrighted work or as a defense against charges of infringement, the Fair Use doctrine has promoted education, social criticism and new forms of artistic works. The long history of Fair Use and the assumptions that follow when it is invoked limit its utility for creating a useful system of materials for Open Education.
Traditional Fair Use doctrine was only common law in the U.S. until it was incorporated into the Copyright Act of 1976, 17 U.S.C. § 107.
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the Fair Use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, 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;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of Fair Use if such finding is made upon consideration of all the above factors.[
However, the educational prospects emphasized in the first prong of Fair Use are underutilized. This underutilization stems from the belief that ” many, if not most, secondary uses seek at least some measure of commercial gain from their use” (American Geophysical Union, 60 F.3d at 921). Essentially, the interpretation has become that not all educational use is Fair Use, and perhaps not even most educational use in some circuits. A non-profit website that reprints articles for educational use would almost certainly be found to infringe copyright, if it can be shown that the market for the original has been affected, even if the website itself is non-commercial.
With the growth of international online educational opportunities, Fair Use should be reevaluated. Until the Fair Use doctrine truly incorporates the educational uses needed for Open Education, traditional copyright hinders the development of equal access.
Open Education is not localized to the United States, but is an international phenomenon. Copyright law and the application of the educational prong should be brought into line with the reality of the online environment. Open Education has been defined in a myriad of ways (as can be seen at http://cyber.law.harvard.edu/questions/list.php).
Open Education is any individual having free access to a variety of educational resources. It enable individuals or communities to engage in learning whether for their own pleasure and intellectual curiosity or for professional and academic advancement.
Open Education is an opportunity. I suppose at times it will be a majestic and inspiring, white canvas. Or a black hole. A space that allows one to be outside one “self” and experiment with alternate “selves” with different morals and beliefs.
Open Education is a realization of Rousseau’s delight-led learning. It provides a framework through which students can explore topics rather than rote-based learning. Open access is the first step to creating an interactive learning environment.
Ultimately, the key to the success of Open Education is the equality of opportunity.
Caity Ross
