Brett Frischmann

here.

Tim Lee posted Blogs in the Balance? over at the Technology Liberation Front. He opens with “Perhaps the most important… Read More »Network Neutrality and “Blogs in the Balance?”

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…Read More »Taking back educational fair use

This weekend, I’ll be attending The 34th Research Conference on Communication, Information and Internet Policy at The National Center for… Read More »TPRC

Check out Andrea Matwyshyn’s interesting post at Jurisdynamics.