Some Thoughts on The Code of Best Practices in Fair Use for Open Educational Resources

by Neil Turkewitz

The Center for Media and Social Impact (CMSI) and the Program on Information Justice and Intellectual Property (PIJIP) at the Washington College of Law, American University, recently released a best practices guide for academics and academic institutions related to fair use in the preparation and use of Open Educational Resources (OER). A few weeks prior to issuance of the guide, I had the opportunity to listen in on a conference call held by the principals of the report, and came away somewhat unsettled which perplexed me. After all, I support the role of fair use and exceptions to protection as part of a robust and flexible copyright system, and embrace the value of practical guides to fair use given its complexity and fact-specific application which can, in the wild, lead to people refraining from permitted activity, and on the other hand, overestimating its scope and engaging in infringement.

And then it quietly dawned on me. In a conversation that spanned about two hours on the use of copyright-protected materials for the purpose of teaching, no one had once mentioned the interests of the author of the underlying work. The author who created the materials deemed so invaluable for the purpose of educating students was invisible — as if the original work had magically sprung into existence without human engagement, and the only question was how to mine this treasure trove of pre-existing work.

But does it make any sense to create a framework that fails to consider the interests of the underlying creator? At some point, shouldn’t the putative users ask themselves:

-If I were the original rightholder, it is likely or unlikely that I would agree to this use?

-How would I feel about not being asked?

-How would I feel about not being compensated for the use of my work?

Those questions, while perhaps not legally determinative, would inform the legal analysis under the fair use factors. But more importantly, they would reflect an understanding of the necessity of undertaking a careful balancing of a symbiotic relationship between creator, re-purposer and student body — reinforcing a moral/civic sense of our interconnectedness that on its own would be far more important than any discrete decision about re-use.

Bearing in mind that fair use only arises in connection with conduct that is otherwise infringing, it seems both clear and natural that consideration of the interests of the original author should, at a minimum, form part of the mental framework for asking oneself about the legitimacy of engaging in the desired conduct.

This legal and spiritual disconnect between the author and the use of her works was further manifested by the oft-repeated notion that “Fair Use is a Right, so Use It.” But that’s just wrong, unless we want words to have no meaning. Fair use is not a right — it is an affirmative defense to a claim of infringement. It is a “right” only in the sense that everything in life that is not proscribed is a right. But that’s a terrible way to look at rights in a legal system based on the articulation of fundamental rights — particularly in light of the fact that unlike fair use, copyright is an affirmative right expressed in laws and treaties.

By failing to consider the role and interests of the underlying author, I fear the guide misses an important opportunity and overlooks how, in some instances, licensing (including zero-cost voluntary licensing) may provide a better mechanism for many of the putative uses while better serving to accomplish the goal of copyright to advance the public interest by providing incentives for the creation and distribution of original materials.

Most importantly, I think it’s essential that anyone who understands the value of cultural materials (which presumably includes anyone that might be using this guide) avoids engaging in ways that suggest that fair use is the holy grail. Education is the holy grail, and fair use is just one of the potential tools to get there. But it’s just a tool — not a movement.

As I have previously noted, “if we fail to produce cultural artifacts worth accessing, fair use becomes irrelevant. We have no interest in accessing that which we don’t value. Thus, fair use is, on its own, an exceedingly odd thing to celebrate. “Fair” is contextual, and “use” assumes a desire to access.”

Far too much of the discussion of fair use strays from its practical and laudable purposes and devolves into a campaign based on imaginary rights and revolving around faux-warcraft against the world of copyright. Participants in the conference referred to “self-appointed copyright police” as if their holy mission were to take down “the Man” — while ignoring that the “Man” is actually an individual creator, possibly a woman and increasingly (and fortunately) in today’s diverse curricula, a person of color.

Participants were informed that they should develop “a plausible true story” about non-displacement of the original work — not that they should truly consider the effect on the marketplace of the unlicensed use. Fair dealing under the new educational exception in Canada was described without any mention of the devastating consequences for authors and the continuing litigation over the relevant legal provision. One participant even suggested that fair use was necessary for media literacy to address misinformation — of no relevance to the conversation other than forming part of the unnecessary and counterproductive holy war to demonize copyright (in addition to being ridiculous).

There is much to like in the guide itself, but I really wish it wasn’t grounded in an adversarial approach to copyright — and to the interests of authors themselves. Peter Jaszi, a dear friend and the reason I became a copyright lawyer thirty five years ago, made a very astute observation: “Beware of easy solutions.” I would add an important corollary, “Beware of illogical and unnecessary religious wars. They tend to not turn out so well.”