Via Ars Technica comes a month old report about fair use. Briefly: educators aren’t educated about it, and fail to call upon their rights to use copyrighted material fairly. I’ll echo these findings. I recently taught fair use (via the MLA Style Manual) to a diverse group of English undergraduates and graduate students, including quite a few high school teachers, and their ignorance of the four part test, for example, was near complete. No longer. (Yeah, I’m doin’ my part!)
Lack of engagement of primary texts is one of the larger problems here. The statute isn’t that hard to read, and abridgments often cop out, as is the case with this suggestion from the US Copyright Office:
The safest course is always to get permission from the copyright owner before using copyrighted material.
Quite true, but bordering on reductio ad absurdum. Of course it’s safest to get permission, but fair use is designed for cases where it’s not likely to be given (a critical review) or carries cost-prohibitive terms (thousands in licensing fees demanded of not-for-profit educators). Other well-known sites invoke the fear of being sued:
The difficulty in claiming fair use is that there is no predictable way to guarantee that your use will actually qualify as a fair use. You may believe that your use qualifies–but, if the copyright owner disagrees, you may have to resolve the dispute in a courtroom. Even if you ultimately persuade the court that your use was in fact a fair use, the expense and time involved in litigation may well outweigh any benefit of using the material in the first place.
Again, true, especially when the benefit is delivered to someone else (students). But when are we safe from being sued? Advice based on fear of litigation troubles me deeply. As a counter to these discouragements, let me point out the excellent fair use resources of the University of Minnesota Libraries, especially their Fair Use Analysis Tool. These sites focus on education; I hasten to point out that fair use is for everyone–no matter what the MPAA wants us to believe.