October 21, 2005

Speaking of (c) and Transactions Costs … [7:18 am]

Some good questions about copyright and the purposes/meaning of fair use in educational contexts: Between What’s Right and What’s Easy [pdf]

Last week, the Copyright Clearance Center announced that it would integrate a “Copyright Permissions Building Block” function directly into Blackboard’s course management tools. The service automates the process of clearing copyright for course materials by incorporating it directly into the Blackboard tool kit; instructors post materials into their course space, and then tell the application to send information about those materials to CCC for clearance.

For many, this move offers welcome relief to the confusion currently surrounding the issue of copyright. [...] As Tracey Armstrong, executive vice president for CCC, put it, “This integration is yet another success in making the ‘right thing’ become the ‘easy thing.’”

Certainly, anything that helps get intellectual resources into the hands of students in the format they find most useful is a good thing. I have no doubt that both the CCC and Blackboard genuinely want the practical details of getting course materials together, cleared, and to the student to be less and less an obstacle to actually teaching with those materials. But I’m skeptical of whether this “easy thing” actually leads to the “right thing.” Making copyright clearance work smoothly overlooks the question of whether we should be seeking clearance at all — and what should instead be protected by the copyright exception we’ve come to know as “fair use.”

[...] [T]here is a dispute, among those who dispute these kinds of things, about exactly why it is we need fair use in such [educational] circumstances. Some have argued that fair use is a practical solution for the complex process of clearing permission. [...]

Others argue that fair use is an affirmative protection designed to ensure that copyright owners don’t exploit their legal power to squelch the reuse of their work, especially when it might be critical of their ideas. [...]

This distinction was largely theoretical until organizations like CCC came along. With the help of new database technologies and the Internet, the CCC has made it much easier for people to clear copyright, solving some of the difficulty of locating owners and negotiating a fair price by doing it for us. The automatic mechanism being built into Blackboard goes one step further, making the process smooth, user-friendly, and automatic. So, if fair use is merely a way to account for how difficult clearing copyright can be, then the protection is growing less and less necessary. Fair use can finally be replaced by what Tom Bell called “fared use” — clear everything easily for a reasonable price.

If, on the other hand, fair use is a protection of free speech and academic freedom that deliberately allow certain uses without permission, then the CCC/Blackboard plan raises a significant problem.

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