Dennis D. McDonald ( consults from Alexandria Virginia. His services include writing & research, proposal development, and project management.

Technology, Copyright, and Fair Use

Technology, Copyright, and Fair Use

By Dennis D. McDonald

Here’s one of the better discussions I've seen recently of how Copyright law’s “Fair Use” doctrine is impacted by technology:

Oct. 21
Inside Higher Ed
"Between What’s Right and What’s Easy"
By Tarleton Gillespie

Here's his first paragraph:

"Sometimes our tools are our politics, and that’s not always a good thing. Last week, the Copyright Clearance Center announced that it would integrate a “Copyright Permissions Building Block” function directly into Blackboard’s course management tools. The service automates the process of clearing copyright for course materials by incorporating it directly into the Blackboard tool kit; instructors post materials into their course space, and then tell the application to send information about those materials to CCC for clearance."

One of Gillespie’s themes is that Fair Use made a lot of sense when obtaining permissions was cumbersome and onerous. According to Gillespie, this justification is becoming less valid given that systems such as those developed by the Copyright Clearance Center are so easy to use. He then goes on to discuss the arguments for Fair Use that relate to support for free speech and criticism.

The irony of this position is obvious. The author admits this, returning us to the fundamental question of whether or not certain types of classroom uses of copyrighted works should require any kinds of permissions process.

One counter to this latter argument is that the same systems that count and monitor requests for clearance and use can also incorporate rules that say, "in circumstance X the first Y copies are free but after that you pay Z." That Gillespie argues against the underlying validity of this type of position will irk many publishers, but his clear and unemotional essay at least presents the argument in terms that can be rationally discussed.

Part of me also wonders about the cost effectiveness of certain types of copyright permissions administration. Many years ago when I was personally involved in managing US government funded research studies that estimated the volume of photocopying of copyrighted works, a major concern at the time was how much it would cost to monitor and measure library photocopying in relation to the moneys actually collected and transferred back to copyright owners.

A major discussion topic back then was always where you draw the line on "fair use" -- that is, where you stop making a transaction "free" and start collecting a "fee." Institutions such as the Copyright Clearance Center were established to facilitate such transactions by making them streamlined and efficient. A fundamental justification for setting up such systems was always to facilitate, not prevent copying, by making the process of permissions (and, yes, payment) as simple as possible.

Now the wheel has gone full circle. Gillespie article points out (perhaps unintentionally) the "gotcha" best represented by the TANSTAFL saying – “There Ain't No Such Thing as a Free Lunch." (Read the comments submitted to the Gillespie article where some of these points are also made.)

It's an old conundrum; some who want the benefits of “free information” (through a particular interpretation of Fair Use) seem to want to treat the costs incurred earlier in the publishing cycle by someone else as "sunk costs" that are justifiably incurred by others and that they – the ultimate Fair Users -- shouldn't have to be concerned about. (Note that I am not saying that this is Gillespie’s position, nor is it mine.)

I'm also not entirely comfortable with shifting the Fair Use argument to one that focuses primarily on freedom of speech and criticism. The quoted author says that in a realtime rights and permissions system the owner of a work could refuse permission to quote if he/she thought the criticism would damage someone's interests and that such an informed refusal could have a chilling effect on intellectual discourse.

I'm not sure I buy that argument. Even if I did, can't a counter argument be made that even an evil person has a right to his/her own utterances and can refuse a wholesale re-publishing if desired?

Not discussed by Gillespie is the issue of privacy. Any system that deals in individual transactions related to individual works requires some level of disclosure about the identities of the customer and the supplied work. Even if the managers of the system provide a high level of security and promise some type of anonymity regarding the parties to the transaction, a system breakdown can occur in which identities might be revealed. And if we tie certain types of Fair Use to certain types of uses, it seems inevitable that, at some point in the transaction, the type of use that will be made of the work will need to be determined. (This need not be onerous – we give special tax advantages to certain classes of users all the time.)

But Gillespie’s article does intelligently discuss fundamental issues related to Fair Use, and that is good. We need intelligent discussions about the relationship among copyright, public benefits, and technology.

Copyright (c) 2005 by Dennis D. McDonald

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