Fair Use, or, How Xerox Changed Everything

So. Up until this point, what I've been learning has pretty much emphasized the fact that material protected by copyright is just that--protected from unauthorized copying. But what happens as technologies evolve and make the copying of protected materials increasingly easier?

Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?

Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.

Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.

What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).

An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up

The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)

I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?

In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?

In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.

Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?

Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.

So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.


FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml


NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.

COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?