I got a bit of a shock yesterday, right about closing time (of course). I got an email message forwarding a short essay by Duke University Law School's James Boyle, The inefficiencies of freedom. I've read many works by Boyle and always find his analysis to be thoughtful and thought-provoking. He's a strong defender of the public domain and I must admit that I generally agree with his opinion that the balance embodied in the copyright act has tipped too far towards the interests of copyright owners. As a result, I was stunned to see that he impliedly labeled as irresponsible large universities like mine that might consider including among the many sources we use to provide legal access to educational materials CCC's new academic license (a form of blanket license, as opposed to a transactional license based on individual works used). Somehow this license will sweep away all of fair use, as though one couldn't thoughtfully conclude that paying for permission was in many cases the right thing to do because a good part of what we do is not fair use. He easily equated fair use for creative uses (parody, criticism, commentary) with fair use for the massive duplication of works created, in many cases, just for our higher education market. I'll address that distinction in more detail below.
But next week I am going to have to go though his piece, sentence by sentence, in order to explain to my client why I don't believe it's irresponsible to consider, among the millions of dollars worth of databases we subscribe to, the tens (maybe hundreds) of thousands of dollars worth of electronic books we provide access to, and the tens of thousands of dollars in transactional license fees we pay for permission to duplicate works beyond what we consider fair, adding a payment to the CCC for, in time, pretty much the same works we license transactionally now. If anyone thinks we can turn back the clock on this transition to new models of content distribution and use, I respectfully disagree.
We license databases in part so that our faculty can provide access to their contents to students in connection with class assignments. We license ebooks in part for the same reason. We pay permissions expressly for the same reason. We do this because everything we do is not fair use, not in my book anyway. I agree that some part of our duplication and distribution of others' works is likely fair use, and we have our policy that describes what that part is. But it's not all fair use.
Because I do not believe everything we do is fair use, as an advisor to my client, I can't responsibly advocate that we avoid paying permissions when our uses exceed what we have determined is fair use, not where there is such a mature, efficient market for licensed uses provided expressly for higher education. As much as we may dislike the fact that the market for permissions and licensed works has been held numerous times to negatively affect the exercise of fair use, that is how the cases involving systematic duplication and distribution have gone. Further, I don't believe our not making a profit on these copies will completely flip the results of those types of cases.
Boyle doesn't represent a university as its copyright counsel. I'm pretty sure he'd insist his was not legal advice if asked directly. If it is not legal advice to a client who's counting on him to give his best estimate of the risk of a course of action, what is it? It strikes me as an emotional plea more than an intellectual argument.
Boyle is singling out, as incompatible with fair use, this particular way of paying for uses we make of others' works. He's afraid that if your university just writes a check to CCC for, let's say, $100,000, so that all the works that are covered by the license (the "repertoire") can be used in the typical ways we use such works in connection with classroom assignments without having to report how many copies were made of which particular works (that is, efficiently), it becomes easy to ignore the question of whether a particular use is a fair use. Who cares whether it's fair use or not? And Boyles' concern is that if we don't care about fair use here, fair use will disappear altogether. Sounds logical, except that fair use is not a monolithic all or nothing proposition.
The fair use test comes out differently depending on the facts about each use. His argument is not that different from saying that if we don't rely on fair use to copy an entire book, we'll lose the right to quote a single line from a book. Those two things are qualitatively, not just quantitatively, different. Creative uses and duplicative, iterative, plain old copying and distributing uses are very different and the courts have consistently recognized that. The kinds of uses that might be refused by the copyright owner, those where we most need to rely on fair use, creative, critical, scholarly uses, are qualitatively different from plain old copying. The recent "Grateful Dead" case illustrated this kind of discrimination quite nicely. Even in the face of evidence of a market for permission to do precisely what the defendant wanted to do, the court upheld fair use for a creative purpose. On the other hand, we see cases where there's massive copying and distribution, but *no* viable market for permission (the Google/Perfect 10 case), and even where profit is involved, the court upheld fair use. These cases say to me that creative uses have a strong claim to fair use; even duplicative uses without a market for permission have a strong claim to fair use. But duplicative uses where there is a functional, efficient market for permission are not enjoying the same strong claim in the courts. I don't think the courts are going to begin any time soon to paint with the broad strokes that Boyle fears.
I too believe that we have to draw a line in the sand about fair use. For example, I greatly admire the effort that has been made to address the "permission culture" developed in the documentary film industry and think that kind of effort should be made in industries that rely on the use of images, such as art history publishing. I just don't agree with Boyle about which side of the line our systematic, massive copying and distribution of classroom materials falls on. In theory, maybe some time in the past, it all, or some large part of it, fell within fair use. But with today's markets for licensing and permission, and courts that are all over that concept when it comes to this kind of use, I have come to believe that that time has passed. There are cases where I still feel we reasonably rely on fair use for classroom materials, but they are a small percentage of all our uses.
I don't think Duke University is asking Boyle to advise it about liability. But even if Boyle were Duke's copyright counsel, Duke will base its decision about what to do on many things in addition to its fear of, or fearlessness about, liability. It might, if it wants to, consider whether it believes that all fair uses will be lost if an efficient market for permission to systematically make and distribute copies of classroom materials further develops. I would hesitate to call Duke's decision irresponsible if it decides it doesn't believe that.
What do you think?