When the Copyright Clearance Center/Blackboard deal was announced recently, I posted a glib, cynical observation about what it means for fair use. Tarleton Gillespie has gone me one better, with a succinct explanation in Inside Higher Ed of why this is a bad deal for copyright.
First, it’s a bad deal because it reduces copyright to a brutal transactions costs essence. If a professor posts material on Blackboard, the CCC permissions process automatically kicks in. No more wasting valuable time wondering about “educational” or “teaching” or “critical” uses of copyrighted works. Just pay the man.
Second, it’s a bad deal because the technological combination hides that point. The posting and clearance process is supposed to be seamlessly integrated, not only making the transaction itself effortless but completely eliminating the thought process that goes into the fair use equation. Is it permitted or is it not? The machine will literally do the teacher’s thinking, and no one — not the institution, nor the teacher, nor the student — will be the wiser. Copyright history teaches that copyright is about more than transactions costs. Sometimes, copyright means never having to say you’re sorry. But you do need to have the choice.
More below the fold.
In the Comments below the piece, Professor Gillespie takes a beating from commenters — some by name, some anonymous — who accuse faculty of laziness when it comes to relying on fair use; who accuse him of failing to recognize the critical distinction between “transformation” of copyrighted works and mere mechanical reproduction; and who argue that university faculty should be skeptical of fair use because university presses are copyright owners, too, and who knows where Professor Gillespie will want to publish his next book?
The Comments are off-base. Here’s why:
There is no excuse for faculty laziness when it comes to fair use, but there is every reason to suppose that faculty are ignorant. That’s no surprise; relatively few people understand the subtleties of fair use, even directors of university presses. In the face of ignorance, should a teacher (i) err on the side of fair use; or (ii) err on the side of seeking and paying for permission? I vote for the former, since to choose the latter is to gradually erode the privileges for educators that the fair use doctrine clearly does grant.
The alleged distinction between “transformative” fair use and unfair “mechanical” reproduction is badly overblown, and it’s one of the worst misunderstandings of fair use generally and the Campbell v. Acuff-Rose Music opinion in particular. Outright mechanical reproduction of a copyrighted work — even of the entirety of a copyrighted work — can, under appropriate circumstances, constitute fair use. Genuine academic use, including teaching use, can be one of those circumstances — though I hasten to add that “teaching” use won’t always or automatically justify the copying. But I’ll stake all those copies of journal articles on my desk on the proposition that photocopying in the academy can be fair use.
And, finally, what of university presses? Don’t universities and their faculty have an obligation to limit unwarranted claims of fair use in order to preserve the scope of copyright needed to support university presses? This topic really deserves a separate post. While much ink has been spilled over conflicts between the university’s research mission and its patent policy, relatively little attention has been paid to the role of the university press in the era of growing open access publishing. The short answer, for now, is that the university’s educational mission extends to individual faculty and to the university press alike. For the university to administer its press as a profit center, and therefore to inculcate in press directors the idea that they should behave like commercial publishers (with attendant narrow perspectives on limitations on copyright), will, in the long run, lead to the disappearance of the press entirely. If the university press is to remain a viable part of the institution, it will need to be subsidized by the university — both in terms of its approach to copyright problems, and financially.
(Spotted via Ann Bartow at Sivacracy)