I’m doing a workshop for CIP on the process of thinking through copyright infringement risk management

8 10 2008

As I discussed last week in my blog post, UT Austin and the CCC’s annual subscription license, I have been thinking over these issues of what’s fair use in the delivery of digital course materials, and how to identify and pay for what isn’t, for a long time. Almost 5 years to be more (but not completely) precise. It all started with that little irritating idea of market substitution, that is, the idea that making copies for educational purposes could be interpreted by a court to substitute for a market-ready service or product, a service or product that we should be purchasing. Oh, the circularity of it all…

But several courts developed the argument in rather quick (by court case standards) succession. By now most people know the three (Kinko’s, Michigan Document Services, and Texaco). Many other much better fair use cases have come along since then (better with respect to the outcome for fair users, despite the presence of a real or simply alleged market for the use), but there’s still this nagging question about how a court will see University copying and distributing in the context of these three cases, as well as the more recent cases that for the most part deal with transformative (creative) uses. To tell you the truth, I pretty much got to a stalemate position when I tried to balance what I thought was the likely result legally with what it was actually possible to accomplish on real campuses. I was poised to publish an article on the subject, but I just couldn’t sign my name to something so depressingly negative, so pessimistic, so, well, hopeless. I truly judged the situation to be a mess but couldn’t see the point in just proclaiming it so.

So, instead I posted the article on the Web where I knew fewer than 12 people would see it, began developing a workshop on the subject for the University of Maryland University College’s Center for Intellectual Property, taught the workshop last winter, headed up task forces and work groups to examine the issues as I described in last week’s post, and boy, did I learn a lot from this effort. I am reworking the article! It will still describe the difficult situations that educational institutions find themselves in, but it’s going to reflect as well what I have learned about the process that we can undertake to manage our risk of infringement.

And, more immediately, I have revised the workshop and am hosting it again at the end of October (see the CIP’s announcement). If you are interested in exploring these issues on your campus, I urge you to sign up for the workshop. It lasts 2 weeks, during which time we’ll share and discuss readings, discussion questions, we’ll have live chats, and lots of suggestions for what you can do on your own campus to get the ball rolling. Outcomes might be very different from campus to campus, as I’ve noted before, but the process is the same, the process of examining 1) what your faculty are using, 2) what licenses you have, 3) how you deliver what you deliver, and 4) the options for narrowing the gap, if you find one, between what you use and what you’re authorized by law (fair use) or license (express or implied) to use. So, I hope you’ll join me! It’s not so hopeless, after all.
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