Guiding Without Lines

©jaych1974

The prevailing wind of copyright judgements are eroding the old guidelines, exposing the open territory of fair use, upon which we must stand. The 10% rules, flow charts and true/false yes/no maps provided by the well-intentioned voices of copyright knowledge are less useful as we navigate toward a the honest assessment of the law itself, because these lines are drawn in sand, not rock.

     Nonetheless, I believe educators can usefully employ guides, lists of considerations and examples of practice - just not ones that provide yes or no answers. My apologies, but there are few if any absolutes when it comes to fair use, and anyone short of a judge who says so will have an equal amount of worthy detractors ready to offer another opinion. It is entirely reasonable to use a checklist to assist in making a fair use analysis, though it is not reasonable for guidelines to lead me to a dead end.

    This is not to say that institutions cannot have rules that forbid certain practices that would expose them to unnecessary risk, mainly in the area of excessive amounts of copying. Common sense clearly seems to bar the way for copying entire works or anywhere close to it. We cannot make a systematic, institutional practice of anything like this, and we can still consider such uses on a case to case basis, and an individual can still decide that their transformative use is so necessary to the educational outcome that the entire work is appropriate. At the same time, the institution, and really the employees who may be called upon to assist such a use, have a right to refuse to assist in those uses which they feel may put themselves at undue risk. This should be their right, since those individuals may be found to have a contributory or vicarious liability through their actions. This could put people in a difficult spot, but if institutions make solid policy, have and a clear intent to follow copyright law and place responsibility in the hands of faculty - documented and supported by copyright education - all staff should be able to cooperate within a space that allows for innovation and mitigated risk.
     It isn't easy to draw lines, and in this area of the law it's practically impossible. This allowable degree of uncertainty, however, should not lead institutions to shut doors and place roadblocks. There is every reason to foster study and expertise in this area, and create the best guideposts we can to help educators make their best judgement. It is within our capability as stewards of fair use to carve out the territory within which we can all support making excellent learning experiences for students.