what happened to January?

January seems all but a blur  – two new courses to teach are keeping me busy. But I had a glimpse of the outside world, long enough to notice the SOPA/ACTA protests, the growing list of digital lock dissenters, and the implications for Bill C-11. (Thank you, Michael Geist.)

Two other interesting developments occurred in the last few days. On 30 January 2012, Access Copyright issued a statement, describing an agreement reached with the Universities of Toronto and Western Ontario in relation to copying of materials in paper or digital form. The statement does not give too much by way of detail, other than to say a fee was agreed upon ($27.50 per full-time student), the agreement is backdated (how far back we do not know) and that an “indemnity provision increases the university’s legal protection against copyright infringement.”

The last clause is a curious one. It is unclear how precarious either university’s position was in terms of a viable charge of copyright infringement. But it invites the question — how stringent are the terms of the agreement as to have each university feel further protected?

Moreover, applying a set fee to all students, regardless of whether they use course packs or not, suggests a marked increase in funds flowing to Access Copyright. According to the statement, neither the universities nor Access Copyright knows how much copying is happening: “Over the course of the next year, a method will be jointly developed to assess the actual volume of copying of copyright protected materials which will assist in determining the appropriateness of the royalty structure in subsequent years.”

Could not the copying have been assessed first, and then the contract drawn up? In the meantime, as other universities have opted to do, permission and payment for copying could be handled directly with the publishers.  A task that is part of a publisher’s duty.

Howard Knopf has a good post about this matter.

A far more agreeable announcement came from the Association of Research Libraries (ARL). The Code of Best Practices in Fair Use for Academic and Research Libraries is now available. Developed in partnership with the Center for Social Media and the Washington College of Law at American University, the code describes reasonable copying that can be taken under fair use, in the pursuit of academic inquiry and higher education:

This code of best practices identifies eight sets of common current practices in the use of copyrighted materials in and around academic and research libraries, to which the doctrine of fair use can be applied. It articulates principles describing generally how and why fair use applies to each such practice or situation.  Each principle is accompanied by a list of considerations that the library community believes should inform or qualify it, limitations that should be observed to assure that the case for fair use is strong, and enhancements that could further strengthen that case.

Of course, fair use is not fair dealing and the American context differs somewhat from Canadian circumstances. But reading this code is instructive towards recognizing how Canadian practices may already support a healthy practice of fair dealing.

This is not the first such effort by the Center for Social Media, similar codes organized by genre or media practice are available here. And, the Center’s founder, Patricia Aufderheide (American University, Professor of Communication) with Peter Jaszi  (American University, Professor of Law) are the co-authors of Reclaiming Fair Use (2011).  Details are available here.

A must read article

An article, Myths About Fair Use by Patricia Aufderheide, appeared in today’s issue of Inside Higher Education. Professor Aufderheide is the Director of the Center For Social Media at American University and a long time advocate of fair use. The Centre has been at the forefront of educating people about fair use; they offer guidance for best practices in many areas including film, communication and media literacy. While  fair use and fair dealing differ in specific language, the challenges that Professor Aufderheide addresses are common to both. In her article, she begins by saying:

Academics potentially enjoy some of the greatest benefits of U.S. copyright law’s doctrine of fair use — which lets them use copyrighted material without permission or payment, under some circumstances. Now if only they knew they did. In Peter Jaszi’s and my research for “Reclaiming Fair Use”, which charts the resurgence of fair use and explains how to use it, we came across as much mythology as knowledge among our colleagues.

It is interesting that she describes the United States as encountering a resurgence of fair use. Fair use is a very old practice; its first judicial appearance occurred in 1841 in a dispute over competing biographies of George Washington. Known as Folsom v. Marsh, the case is credited to be the starting point of shaping fair use as an identifiable practice. Yet fair use did not officially enter into American law until 1976.

The past 170 years have been eventful for fair use in the United States. It encountered its share of growing pains, but as copyright’s depth and breadth expanded so too did the impetus to better understand the remaining limits on copyright. Because it is through its limits that copyright can achieve what we ostensibly believe to be its purpose: furthering creativity and innovation. Those activities are heavily reliant on building upon past work; fair dealing and fair use are the only measures within the law that allow existing copyrighted work to be freely used in the practices endemic to creativity and innovation. Hence the resurgence. In terms of making the best use of fair dealing, Canada could learn much from the experiences of the United States. We are in an enviable position of being offered maturity without enduring the trials of adolescence.

However, deeper understanding of fair dealing will take some time to come to fruition. Fair dealing has greater visibility than ever seen before, yet it has come with a slightly unkempt appearance. Despite the vital role fair dealing plays in creative engagement, recent discourse is confined to emphasizing that copies of curriculum materials must not be made freely available en masse to students. Arguably, this is important; faculty need to be informed that fair dealing is not a means of unbridled redistribution. However, for the faculty that will only know of fair dealing through these events, fair dealing has been reduced to prohibition on behaviour that lacks legitimacy to begin with.

Fair dealing is much more than an uninvited guest. As Professor Aufdeheide’s work attests to, fair dealing is a dynamic and ubiquitous element within academe.