Info/Law

One of the interesting hard questions in the recent Digital Learning white paper was the tension between making it easier to get licenses for content on the one hand and promoting a robust understanding of fair use on the other hand.

Some people with whom we spoke fretted, quite understandably, about the trend toward rightsholders slicing and dicing content into smaller bits and offering licenses for every conceivable tiny use. As Tim Armstrong explained a few months ago, the mere existence of a market for a particular use of content has been seen by some courts as severely undermining a fair use defense. Educators thus forced to pay constantly for microchunks of content that ought to be covered by fair use might soon be priced out of those markets — a perverse effect of the “any conceivable market counts” approach to fair use.

On the other hand, there certainly are times when fair use just does not apply, and educators would like to have an easier time clearing rights. Our case study about the Database of Recorded American Music is an example of such a situation: its sponsors wanted to make full copies of important music available through digital delivery on college campuses and recognized that doing so required licenses rather than reliance on fair use. They encountered rights clearance nightmares (which, with tenacity and persistence, they resolved, but others with fewer resources and less skill might have more trouble overcoming such problems).

Some technology now allows for instant licensing of certain content — such as the online permissions available here and here. The white paper suggests, perhaps somewhat gingerly, that the appearance of such technology makes it easier for educators to license content and that this is a good thing. The paper also emphasizes that licensing technology must be integrated into a holistic approach — and perhaps into other technological tools — that respect fair use. This approach would consider fair use the first option for educational users of copyrighted material, while recognizing that educational users at times need a license. Making it easier to obtain that license could benefit everyone, including rightsholders, educators, and those who will learn from the material.

If court decisions continue to view the availabilty of any market as a factor cutting against fair use, however, such a holistic system could become very difficult to sustain. This is a bit of a “stay tuned” issue, as both the legal and technological situations remain in flux. I can still envision it turning out quite well or quite badly.

Filed under: Berkman, Copyright, Education & Copyright, Scholarship