{"id":123,"date":"2015-02-25T14:11:21","date_gmt":"2015-02-25T14:11:21","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/copyrightosc\/?p=123"},"modified":"2015-02-25T16:06:24","modified_gmt":"2015-02-25T16:06:24","slug":"fair-use-week-2015-day-three-with-guest-expert-laura-quilter-2","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/copyrightosc\/2015\/02\/25\/fair-use-week-2015-day-three-with-guest-expert-laura-quilter-2\/","title":{"rendered":"Fair Use Week 2015: Day Three with guest expert Laura Quilter"},"content":{"rendered":"

Fair Use : A Virtual Anthem of Empowerment and Joy for Librarians and Educators<\/strong><\/p>\n

I WANNA SEE YOU BE BRAVE<\/strong>[1]<\/sup><\/sup><\/p>\n

The American Library Association recently passed an interpretation of its Code of Ethics<\/a> to clear up confusions about the line that says librarians \u201crespect intellectual property rights.\u201d This phrase was taken by some to mean that librarians must respect the rights of copyright owners, or even police users on behalf of copyright owners.<\/p>\n

\n
\"Keith<\/a>
Keith Aoki, James Boyle, and Jennifer Jenkins, 2006, Bound by Law?, p.59. Available at http:\/\/web.law.duke.edu\/cspd\/comics\/<\/figcaption><\/figure>\n<\/div>\n

 <\/p>\n

This was wrong. ALA\u2019s new Copyright Interpretation<\/a> clarified the line because copyright isn\u2019t just a one-way street \u2014 it\u2019s a carefully calibrated balance of rights of owners and users, intended to \u201cpromote the Progress of Science and useful Arts.\u201d (US Constitution, Art. 1, s.8, cl.8<\/a>.)<\/p>\n

Unfortunately, we see the same error over and over again in copyright. Librarians try to do the right thing; try to follow what they have been told is \u201cthe law\u201d \u2014 but it\u2019s a law that ignores the other half of copyright law: users\u2019 rights.<\/p>\n

In fact, what some portray as a cautious or conservative[2]<\/sup><\/sup> approach turns out to be a radical re-invention of copyright as an absolutist regime, unlike virtually any other legal regime.[3]<\/sup><\/sup> We see the results of this misguided \u201cconservatism\u201d all too often, and it can lead to real error when this approach conflicts with the fundamental mission of an institution. My own university fell into this trap recently, when it interpreted a government statute to block admission of Iranian students to specific graduate programs. That this policy would pose a conflict with the University\u2019s greater mission of promoting academic freedom and inquiry was, unfortunately, not noticed until after the policy was announced and met with widespread criticism, both within the University and without. Administrators belatedly recognized the mistake in the unduly cautious and conservative approach to that statute, and adjusted course.<\/p>\n

Assessing any law solely through the lens of risk assessment can create such conflicts. A better understanding of the need to balance mission risk<\/em> with legal risk<\/em> could help avoid this problem altogether. As Brandon Butler and other colleagues[4]<\/sup><\/sup> have noted, we simply cannot avoid all risk, if we hope to function at all. For example, any time you invite someone onto your property, you risk a slip-and-fall lawsuit. But a University must invite people onto its property in order to teach, conduct research, and simply operate. So we must, all the time, consider potential legal risk, but also mission risk \u2014 our duty to fulfill our own mission, and the risk of not fulfilling it if we act out of fear. In fact, whenever I teach law, I am careful to distinguish different levels of ethical and prudential assessment: the legal, the professional, the institutional, and the personal.<\/p>\n

So here\u2019s where I\u2019m going to channel Sara Bareilles: I wanna see you be brave.<\/em><\/p>\n

\"FU2\"
\nI\u2019M ALL ABOUT FAIR USE, NO FUD.[5]<\/sup><\/strong><\/sup><\/strong><\/p>\n

In copyright, we might be tempted to take an institutionally conservative approach. \u201cDamages in copyright are potentially so large! Fair use is so confusing! It\u2019s hard for ordinary people to understand! Our licensing librarian thinks fair use is risky! There are so many technicalities!\u201d<\/p>\n

Fair use is none of these things. Copyright law doesn\u2019t just protect fair use \u2014 it charges librarians and educators with the responsibility to use it. So let\u2019s clear away some FUD:[6]<\/sup><\/sup><\/p>\n