Fair Use in Scholarship

I’ve been involved in a few disturbing conversations the last couple of days.

Fair Use has a vital role in copyright law- it allows the use of copyrighted material without permission for what are essentially societal benefits. Criticism, scholarship, teaching and research are specifically mentioned in the text of the law as examples of the kinds of work that should be fair. Fair use is necessary for scholars.

I’m interested in a wide variety of subjects that don’t directly involve copyright- much like the field if Information, looking at copyright often involves looking at the areas that copyright touches, and much like the field of Information, those areas can be just about anything. So, for example, I look at how copyright affects the practices of libraries and archives, or K-12 education, or other subjects.

One of the things that got me interested in copyright in the first place were the practices of fans, because I am a fan and copyright seemed to bring up interesting and problematic questions for fan activities. In the anime fan world, for example, the practice of fansubbing- that is, groups of fan subtitling and distributing anime that hasn’t been released in the U.S.- used to be, and still is, relatively common. Anime club showings, where people get together and show anime, are also common. I have doubts that the anime industry would exist if these practices hadn’t occurred, but they certainly bring up copyright challenges. Anime itself has become a serious subject of study, and I’m on a few related mailing lists.

I recently gave a presentation about copyright to a group of archivists and educators from different universities in the U.S. One of the topics that came up was working with attorneys. At UT, we’re very fortunate to have strong copyright scholarship advocates like Georgia Harper. I know some other universities also have advocates in that area- Kevin Smith at Duke, for example. But one thing that really struck me from that meeting was that not all groups in other universities have that kind of support. A couple of people described how risk-averse their counsel is when it comes to copyright issues. That’s a problem. There’s too much going on in the world for fear to win those copyright arguments in education.

A related discussion popped up on one of the scholarly anime mailing lists I mentioned. One student working on a dissertation was told that he was required to get permission for every thumbnail or image he had intended to include in his work- well more than a hundred. A few people chimed in about how such a requirement seemed excessive, but many who contributed to that conversation said they had to work under that same restriction: “No permission, no dissertation, no graduation.” Some flat out said that they were told to just avoid such use altogether- don’t even plan on using images at all. If you had planned to, change your plans. Write about something else.

That’s terrible. Even when the law is likely on your side, your institutional situation can put you in a position where you’re not allowed to assert your rights and do the type of research that could contribute certain types of understanding. And when universities take this type of attitude and base their practice on this attitude, it affects the rights of scholars everywhere. Looking at actual practice is part of evaluating fair use. Making your practices so very restrictive is not only detrimental to your researchers, but to everyone doing research.

We, the scholarly community, need to be fair use advocates. We can’t let fear rule our decisions.

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  1. By Pages tagged "fair" on 11/15/2008 at 1:33 pm

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