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Fair Use and Higher Education: A Statement of Principle – The Need to Address Fair Use

It is urgent, timely, and in the best interests of higher education that our universities raise a coordinated voice to address the topic that is known as the “fair use” of copyrighted works. The fair-use doctrine is under debate now in several different forums — locally, nationally, and internationally. The debate involves both public and proprietary interests. It arises because of the changing dynamic between the broad sweep of “intellectual properties” and the deployment of powerful and rapidly evolving communications techniques and infrastructures. These developments already have demonstrated their significant consequences for higher education and will have more pervasive effects in the future. Thus, we advance this statement of educational principle.

The Legal Framework of Fair Use

Fair use today is embodied in Section 107 of the U.S. Copyright Act and it exempts limited uses of materials from infringement liabilities. As detailed in Section 4 of this pamphlet, the full text of the fair-use statute makes clear that the right of fair use is specifically applicable to teaching, research, and scholarship, and that its scope depends on the four statutory factors. These four factors are open to diverse interpretations; its become a subject of great debate at law schools as the statute offers virtually no details for determining which activities may be safely allowed.

The Statement of Principle

The law’s flexibility is an opportunity and a challenge. It is an opportunity to expand and apply the fair-use doctrine to diverse and changing requirements in an effort to be fair to all parties. It is also a challenge to apply fair use amidst relative uncertainty, and new interpretations often do not favor educational needs. The four principles stated below serve to focus attention on these needs.

Higher education’s legitimate right to use copyrighted works must be protected.

The fundamental mission of higher education is to advance and disseminate knowledge. This mission is realized through the use of various information formats, learning environments, and modes of delivery without unreasonable copyright restrictions. The goals and objectives that we set in order to accomplish our mission require the ability to explore, analyze, and exchange information. The effectiveness of our work depends on our right to make creative and balanced fair use of copyrighted works.
To succeed, all members of the college and university community must have reliable access to a wide variety of materials for teaching, learning, scholarship, and personal study. The materials also need to be stored and retrieved across the full range of the ever-richer diversity of useful electronic and traditional formats.

Fair use in the electronic era must allow those processes when and where they are needed, without burden of myriad negotiated transactions, and consistent with the constitutional objective that copyright “promote the progress of science.”

Freedom of access to information, regardless of its format, is essential for the creative and learning processes.  Higher education must make use of the full range of means for accessing and utilizing various works which are protected by copyright law in both electronic environments and in traditional environments. Fair use is a historically important doctrine which is essential to fulfilling our higher education objectives. Fair use allows the academy to respond to the dynamic nature of the educational process and to the evolving formats of information resources. Fair use allows an otherwise rigid copyright system to respond to the fluctuating volume of available information and to the changing demands for its use. Fair use allows all members of the university community to sample the broadest possible range of ideas, to build new works upon the old, and to facilitate equal access to copyrighted works within the reasonable limits of the law.

Higher education’s right of fair use in the electronic era must continue unencumbered by terms of licenses or transaction fees.¬†Fair use is the crucial legal provision that allows our educational system to be assured of enriching the student experience and of realizing its research objectives with the widest array of knowledge and insights. It provides the necessary educational opportunity that enables our institutions of higher education to prepare students for success in the world economy.

Colleges and universities have supported, and will continue to support, the economic and creative incentives of copyright owners. But higher education also must support an expansive and flexible view of fair use in order to assure the fullest possible sharing of knowledge and to meet the unpredictable demands of teaching, learning, and scholarship, regardless of information format, learning environment, or mode of delivery.

Higher education has an obligation to educate its constituencies about intellectual properties and about the lawful uses of copyrighted material.

The remainder of this document is presented as a first step in the discharge of this educational obligation among the constituencies of higher education. In this regard, it is important for higher education to take the initiative in an effort to achieve the appropriate balance in matters related to the evolving interpretation of the fair-use doctrine.

Fair Use: Overview and Meaning for Higher Education

Copyright law begins with the premise that the copyright owner has exclusive rights to many uses of a protected work, notably rights to reproduce, distribute, make derivative works, and publicly display or perform the work. But the Copyright Act also sets forth several important exceptions to those rights. Key statutes make specific allowance for concerns such as distance learning, backup copies of software, and some reproductions made by libraries. The best known and most important exception to owners’ rights is fair use.