"Will Fair Use Survive?" (New York: Brennan Center for Justice, 2005).

www.fepproject.org/policyreports/fairuseflyer.html

Description:

This study conducted by the Brennan Center for Justice at New York University School of law researched the causes and consequences of the increasingly heavy hand that is being exercised by copyright and trademark owners on limiting Fair Use. The study highlights the importance of preserving Fair Use for the benefit of democracy, the public in general and to ensure that "the owners of intellectual property cannot close down the free exchange of ideas." It states that copyrighting is a confusing arena for users and one in which the powerful can overstep limitations of Fair Use. It can also be a permissive arena in which intellectual property owners can exercise undue authority. The study concludes with a series of normative and legal recommendations to improve the standing for the users and encourage copyright owner to exercise restraint.  

Analysis:

The study's central team is helping the reader to understand the increasing pressures facing Fair Use consumers and the urgent need to take action to prevent copyright owners from eroding the establish laws of Fair Use. It bases it claims on research that points out the weakening of Fair Use law as well as the fact that intellectual property owners have effectively developed an atmosphere of fear around it. By doing so, they have deterred and ultimately limited the free exchange ideas. The study documents several examples of big corporations taking action against individuals whom they claim had violated their intellectual property rights. These examples underscore the unequal legal status that individual users face when attempting to claim Fair Use. Finally, the study questions the survival of Fair Use under the current practices.

Crews, Kenneth D. "The Law of Fair Use and the Illusion of Fair-Use Guidelines." Ohio State Law Journal 62 (2001): 599-702.
http://moritzlaw.osu.edu/lawjournal/issues/volume62/number2/crews.pdf

Description:In this article, Dr. Crews looks at the historical development and use of guidelines in Fair Use. The author uses government documents and court rulings to demonstrate that the guidelines are basically irrelevant to the Fair Use and Copyright laws. Furthermore, the article sets out to demonstrate that in practice such guidelines are an obstacle in the development of truth and understanding of the Fair Use laws.

Analysis:The article criticizes the development of guidelines, because as Dr. Crews demonstrates well, they have not been of help to Fair Use users and have not clarified or aided anyone who has faced the Fair Use law. The author's argument goes further stating that guidelines or the illusion of the guidelines indeed have mislead the consumers (the public) into believing that they possess an agency value and that they would be universally recognized in a court of law. Dr. Crews documents how such has not been the practice in reality and that in fact certain users would have been better served if guidelines were not employed at all and they just focused strictly on the preexisting laws.

Freedom To Teach: an Educational Fair Use Project. http://cyber.law.harvard.edu/research/freedomtoteach#

Description:

Freedom to teach is a project conducted by The Berkman Center at Harvard University under the direction of Dr Lewis Hyde Berkman, Fellow. The project's initial goal is to develop a statement of best practices for Fair Use in higher education. The ultimate goal is to offer "clarity and agency to an area where confusion and caution are now the rule." The project's description and proposal include a step-by-step description of the actions that the project will be taking in order to create a statement of best practices that will be true and useful to those teaching in higher education.  The center will also include discussions and descriptions of items such as the history of Fair Use, the current problems with Fair Use and the issues identified as problematic with Fair Use guidelines. Dr. Hyde and his group also detail the need for change and clarification. Finally, the proposal explains the Best Practices Model and compares it with the research in current practice.

Analysis:

To understand the social value of the project being conducted at the Beckman Center, we could go back to Dr. Hyde's description of Fair Use as "a key part of the social bargain at the heart of copyright law.  The rights that this doctrine gives to the scholars, teachers, and creative artists in higher education only come to life, however, when they are understood, claimed, and used." Therefore, Dr. Hyde and his group feel certain that the doctrine will bring clarity and understanding to Fair Use while and allowing the current Fair Use law to be once more what it was intended to be: a source of protection for professors, scholars and teachers while permitting them to use copyrighted material in a way that would allow owners to exercise control of their intellectual property in all other areas of society.

News from the Future of Public Media Posted by Patricia Aufderheide on May 7, 2009 at 4:12 PM.http://www.centerforsocialmedia.org/blogs/future_of_public_media/dmca_fair_use_and_educators/

Summary:

This news report from The American University Center for Social Media reports on the recent efforts of media professors and professor from other disciplines to obtain renewals and extensions on exceptions in copyright law. After battling industry lawyers three years ago, the reports say professors such as Dr. Peter Decherney are again in the courtroom to once again attempt to make cases on behalf of educators and their students.

Analysis:

Coming for the Center for Social Media the report is very sympathetic to the professors who are trying to convince the industry and the lawmakers that when it comes to education, the rules for copyright use should be different, because (among other things) it is in the best interest of society, and because profits are not derived as a result of materials used in the classroom.

The Pros and Cons of an 'Educational Fair Use' Lewis Hyde, Berkman Fellow, speaks on "The Pros and Cons of an 'Educational Fair Use' Project" http://cyber.law.harvard.edu/interactive/events/luncheon/2008/02/hyde

Description

In this video The Berkman Center for Internet and society of Harvard University and Dr. Lewis Hyde are discussing the problems with the laws, guidelines and practices related to fair use in education. Dr. Hyde speaks of the historical and current confusion around fair use in education and the negative consequences that such confusion has created for professor and instructor in higher education. The impact as Dr. Hyde discusses can be found in areas such as free speech, academic freedom and the quality of instruction. At the same time, Lewis Hyde is calling for an educational fair use project to be conducted by educators who will have small groups that will use their classrooms and instructional needs as guidelines to determine what should or should not be fair use in education. Such a project will then be used to negotiate with owners in good faith and with the goal of community service in mind.

Analysis:

Dr. Lewis Hyde from the Berkman Center for Internet and Society of Harvard University is in this video advocating for changes and measures to prevent owners from eroding fair use, free speech and academic freedom. In his presentation, Dr. Hyde effectively documents the history that brought fair use to this point of conflict while at the same time attempts to clarify the laws that regulate copyrighting. Professor Hyde's presentation also very clearly describes step-by-step the guidelines that one could use in order to conduct a project for fair use in education.    

http://www.centerforsocialmedia.org/resources/publications/code_for_media_literacy_education/ :

Discusses fair use in media literacy education, appropriate uses for educators and students of fair use when it comes to using copyrighted materials in order to teach media literacy.  It also clarifies what benchmarks are as used by lawyers and judges to decide what is fair use as well as the myths and facts about fair use in the classroom. Finally, it encourages educators to be leaders, not followers in the process of establishing the best practices of fair use in education.

Analysis:

The article is aimed at educators with the purpose to educate teachers about the guidelines of fair use in the classroom.  The principal goal of the article is to encourage educators to use technology in the classroom and to contribute to the current dialog and process of establishing best practices in fair use in education and  in particular media literacy. The underlying goal of the article is to call on educators (uses) to participate in the conversation about fair use in order to create an environment where all educators feel more comfortable using the media and therefore, have students and the public in general take advantage of the benefits of media literacy.

"ALA | Editorial Statement," American Library Association, .
http://www.ala.org/Template.cfm?Section=Distance_Education_and_the_TEACH_Act&Template=/ContentManagement/ContentDisplay.cfm&ContentID=25939 (Accessed July 22, 2009)

Summary

This article is published by the American Library Association: The text is a summary of the laws and regulations in the TEACH Act (Technology, Education and Copyright Harmonization Act). It discusses how The TEACH Act replaces section 110(2) in regards to copyright and fair use in the Distance Learning environment. The article also highlights what is new in terms of Copyright and fair use for Distance Education as well as what is problematic about the new laws. It is also an attempt to clarify ambiguities within the law and point out areas of improvement as it replaces section 110(2). The article also presents a brief summary of copyright law and closes with the roles of instructors and librarians.

Analysis

The American Library Association ALA presents a really well organized and clear summary of the changes taking place in copyright law in the area of distance education. It provides librarians, instructors and the general public with a quick review of the historical facts as well as the most updated information. It also provides a definition of the TEACH Act and within such a definition a comparison between the previous regulations guided by section 110(2) and the current provisions of the TEACH Act. It summarizes for the reader what is new, what is the same and what is problematic about it. The article is problematic as it is almost mandating a series of guidelines to instructors while perhaps taking the role of librarians as gate keepers a bit too seriously.  In the end although the ALA does a great job in summarizing and describing the laws, it is going a bit too far when it comes to "instructor's duties".