Lewis Hyde outlined the “Encroachment on the Commons” now underway in the academy.
A basic dilemma facing educational fair use is that it’s stuck between too much specificity (cutting out potentially fair uses) and too much vagueness (leading teachers to avoid risk by stopping far short of fair use). To the extent that specific guidelines are available, they’ve been shaped by the publishing industry and drafted without serious input from users (input letters not published), lack legal standing (court in a coursepack case argued need to go back to the copyright statute itself), unclear if they are minimum or maximum allowed (NYU, under litigation threat, treated guidelines as max, now followed by 4 of 5 universities.
What can be done?
- Give up on fair use altogether
- Create guidelines: The status quo
- Develop best practices: Get use communities to articulate their discipline’s norms around fair use. See the documentary filmmakers.
Lewis now advocates the third path, putting emphasis on the process of involving community rather than the legal requirements imposed by the law. The point would be that the community develops its own norms and establishes common-sense fairness before checking for legal acceptability. The next critical step would be winning buy-in from the entire community, especially those who might otherwise stand in the way.
John Wilbanks of Science Commons suggested reframing the issue as “The Right to Teach,” which strikes me as an incredibly powerful way to assert the positive value of fair use (which, after all, is a negative cutout of copyright).
I mentioned that for eLangdell, a legal education commons at CALI and backed by Berkman, would love to be part of a pilot project to identify best practices and be protected by any litigation defense system that can be set up in connection with these practices.