[A2k] FT: Boyle Copyright and academic insitutions- The inefficiencies of freedom

[Michelle Childs]

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The inefficiencies of freedom

By James Boyle

Published: July 1 2007 20:50 | Last updated: July 1 2007 20:50

Sometimes, freedom can just come to seem inefficient. Old-fashioned.
Something that can be subcontracted away. That is the time to worry.
Or so it seemed to me when I read about a new license that the
Copyright Clearance Center is offering American academic
institutions. The centre is a non-profit organisation. Its worthy
purpose is to act as a central clearance center for permissions
requests. If you are a teacher who wants to assemble a course-pack of
readings for your students, the centre will clear the permissions
from the copyright holders and collect licensing fees for them,
allowing you to do your job without hiring a law firm for each batch
of homework. Some of you may be surprised that such a process is even
necessary. You may remember that the American copyright act
explicitly declares the making of =93multiple copies for educational
use=94 to be a =93fair use=94 =96 a privileged freedom statutorily removed
from the monopoly Congress has granted the copyright holder. If no
permission is required, why is such a centre even necessary?

That is a good question. The answer is that there is profound
disagreement about the extent of educational fair use. A widely
criticised =93Conference on Fair Use=94 declared that it meant nothing
more than a few hundred words photocopied spontaneously before class.
A court of appeals held that even coursepacks made up of huge
photocopied excerpts =96 95 pages from one book, for example =96 were
fair uses, even when done by a commercial copy shop working for a
professor. That decision was overturned by a full panel of the same
appeals court, over several strong dissents. But even there the court
indicated that had the copying been done by a professor or a
university rather than a commercial copy shop, the answer might been
different. So where does the line lie for US educators? A few hundred
words spontaneously copied before class? Or the routine photocopying
of large portions of many books? The answer is that we do not know,
though =96 if the copying is not done for profit =96 the answer lies in
the middle and closer to the larger extreme.

Enter the Copyright Clearance Center. The centre=92s task is an
admirable one =96 make copyright simple for educators. Last week they
made it even simpler. The centre will offer blanket licenses for
academic institutions. Many publishers have pooled their content to
be licensed =96 on payment of a single fee. The press releases suggest
that students and faculty will no longer need to worry about
copyright. In fact, the license does not cover all copyrighted works.
Not even close, though it is described that way in some press
accounts. Still it covers a lot and the temptation is to believe it
covers everything. Publishers and authors get paid. Teachers and
students can give up trying to understand the law. Administrators can
write one huge check and then forget about copyright for a whole
year. What=92s not to like?

That takes us back to the zone of uncertainty about the contours of
fair use. It is bad for the goals of copyright =96 promoting
expression, culture and the dissemination of ideas =96 if every use of
copyrighted works is controlled. Parody, satire, criticism =96 all of
these depend crucially on fair use. So does education and scholarship
even when, perhaps especially when, the person whose works you are
copying does not want you to do so. The gaps in copyright =96 areas of
freedom the statute explicitly outlines =96 are as important as the
rights given to the author. In a world where we =93solve=94 uncertainty
about the extent of fair use by blanket licenses, the actual area of
that freedom will atrophy. This makes fair use sound like a muscle =96
use it or lose it? But that is the reality.

Courts look to the =93markets=94 for copyrighted work in determining fair
use. If educators give up on fair use and simply pay a tithe to cover
all of the zone of uncertainty =96 covering many uses for which they
should pay, and many uses for which they need not =96 the next court to
define the fair use freedom will use that practice as a baseline.
Teachers and students may come to understand their freedom to make
educational copies as granted by license, not law. That may not be of
much concern for wealthy colleges that find it easier to just pay a
flat fee rather than educate their students and teachers about fair
use. But it is a great concern for poorer institutions and for the
rest of us. What about an individual teacher who needs to reproduce
copyrighted works in order to teach her students about a
controversial and litigious religious sect or the internal operations
of a company that makes voting machines =96 and finds herself sued for
her pains? Or teachers of art, music or film who need material not
covered by the license?

Over the last fifty years copyright has expanded dramatically =96 in
breadth, depth and scope. That puts more pressure on the =93safety
valves=94 such as fair use that limit copyright=92s extremes. During the
expansion, educational institutions and libraries have often reminded
Congress and the courts of the need to make sure that copyright did
not become total control. They have been the public defenders of the
public domain. Will that role continue?

The Copyright Clearance Center=92s goals are respectable. Publishers
and authors have completely legitimate interests to defend. But is
the result of this new license a buy-out by wealthy institutions, the
only ones who could afford to defend the principle of academic
freedom called fair use? Is it a retreat to licensed =93gated
communities,=94 leaving the poor, the uninformed and the dissident to
with no license and an atrophied culture of fair use? If so, the deal
might carry too high a price tag for responsible academia to pay.

James Boyle is a Professor of Law at Duke Law School and co-founder
of Science Commons. His most recent book is The Shakespeare
Chronicles, a literary mystery about the authorship of Shakespeare=92s
works.

Copyright The Financial Times Limited 2007

Michelle Childs
Head of European Affairs
Knowledge Ecology International
michelle.childs@cptech.org