Educational fair use is shrinking. By virtue of significant improvements in the administration of copyright licensing and persistent pressure by publishers and copyright owners to license virtually all uses of works, many educators have been corralled into seeking permission and paying for licenses through institutions such as the Copyright Clearance Center. To make matters worse, there is a circular feedback loop in fair use analysis that ties fair use to market effects (or market failure) such that the availability of licensing revenues undercuts arguments for fair use and gradually leads to its demise.
There are no presumptions employed in fair use analysis, and this makes it rather difficult to figure out what constitutes fair use in a given context. While using copyrighted materials for educational purposes is recognized as the sort of use that stands a fighting chance to be recognized as fair (a weight on the scales, so to speak), it is not presumptively fair and must be evaluated by users on a case-by-case basis. There are fair use guidelines, but their utility is quite limited. In many cases, the guidelines are overly restrictive, and in some cases, the guidelines fail to provide much guidance. In the end, the cost of figuring out what is legally permissible stifles educational use or pushes people to resort to licensing mechanisms. (On educational fair use, see generally this white paper by the Berkman Center.)
Scholars have responded to the dilemma of shrinking educational fair use by calling on universities, courts, and Congress to safeguard educational fair use, but, for a variety of reasons, these calls have fallen on deaf ears. No one has asked the States for help, however. Yet the States have a strong and longstanding commitment to supporting public education.
Suppose a State determines that all uses of copyrighted materials by any state-owned educational institution serve a genuine and important public purpose and thus should be permitted without a license. Could the State implement statewide educational fair use? Could the State implement a copyright safe harbor for state-owned educational institutions?
Below the fold are some preliminary thoughts…
[Perhaps] States can and should construct an open educational environment—an educational public domain—through the exercise of their eminent domain powers. States are constitutionally entitled to exercise their eminent domain powers so long as they pay property owners just compensation for property expropriated. Eminent domain is generally employed by states and municipalities to expropriate and repurpose land for the benefit of the public. Rather than take someone’s home to build a shopping mall for the purpose of local economic development, why not take (back fair use,) a sliver of someone’s copyrighted expression for the purpose of education (and perhaps local economic development as well).
How could this be done?
The state would invoke its eminent domain powers, declare [all uses of copyrighted materials for educational purposes (too broad?)] by state-owned or financed educational institutions to be fair. The state would absolve users of copyright infringement liability and provide a mechanism for aggrieved copyright owners to seek compensation from the state.
To the extent that the declared zone of educational fair use is inconsistent with federal law, copyright owners may sue the State for taking their property. Such suits would occur on a case-by-case basis in the same fashion as a copyright infringement suit except (and herein lies one major advantage of the system) that the burden would be on the copyright owner to establish a takings claim.
It would be hard to dispute the “public purpose” prong of the takings claim, so the bulk of the litigation would focus on (1) whether a particular use would be fair under federal law and if not, on (2) just compensation. Thus, in the takings context, the copyright owner would have to delineate unfair uses and prove the extent of harms to justify compensation. This would be a significant improvement over the current state of affairs because, for a decent sized class of users and uses that border on fair use, the burden would be shifted from the alleged infringers (educational institutions, professors, students, etc.) to the copyright owners.
What are the legal obstacles?
The primary legal obstacle to this proposal would probably be federal preemption. Would state legislation implementing educational fair use be preempted by the copyright statute? There may be some thorny issues to iron out in terms of the wording of the state statute, if in fact a state statute is even needed. To sidestep preemption issues, it may be possible for the state to (1) issue fair use guidelines for state-owned institutions that include a very broad educational use interpretation of fair use, and (2) make sure that the eminent domain-type statute that most states have is modified to include copyright infringement actions arising out of educational fair use.
So, this is just a rough idea; it needs much work (and perhaps should be scrapped; who knows? perfect for a blog post, right?). There are many issues to confront—some legal, some political, some institutional, etc. Any thoughts, suggestions, or criticisms?
[I should note that this post reflects ideas that were the subject of an interesting lunch conversation I had with David Johnson a little over a year ago.]