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Copyright Clearances: Fair Use Action and Apathy

Magazine article Online

Copyright Clearances: Fair Use Action and Apathy

Article excerpt

Call me a herd, but I like copyright. I like reading about copyright, parsing the statutes, and debating its concepts. Perhaps I should get out of the house more, but as someone who has created, used, sampled, remixed, borrowed, cited, and paid for innumerable "original works authorship ... fixed in a tangible medium of expression," I feel that I should know about copyright. Just as a truck driver should know some basic physics and engineering--the code of his trade--so that he can get his truck to where it needs to be, I believe creators and information professionals should know the code of creativity, which is copyright.

As a result, I peruse lots of news items about copyright. During the spring, I read several stories suggesting that the content industry--which includes large book publishers--is seeking to define the fair use doctrine as narrowly as possible in the digital age. Here are two:

* On April 7, 2005, the Chronicle of Higher Education published a story [] that outlined the Association of American Publishers' objections to an electronic reserve system being implemented at the University of California, San Diego. "Publishers are objecting to an electronic reserve system at the University of California in which libraries scan portions of books and journals and make them available free online to students," wrote Scott Carlson. "Lawyers for the Association of American Publishers [AAP] have sent letters to the university that object to the use of electronic reserves on the San Diego campus. The publishers say that the use of electronic reserves is too extensive, violating the 'fair use' doctrine of copyright law and depriving them of sales."

* On May 21, published a story that discussed the electronic reserves system at New York University, and AAP's problem with the comparable system in place at UC San Diego [http://msnbc.msn. com/id/7915031/]. This story quoted AAP's general counsel as indicating the organization was in the process of "investigating other universities" for similar transgressions.


I read the second story soon after discussing the plight of fair use with Siva Vaidhyanathan. Vaidhyanathan is an assistant professor and copyright scholar at New York University, opening keynote speaker at last year's AALL conference in Boston, and the author of The Anarchist in the Library (2004, Basic Books). We spoke in late April 2005 at the U.S. Supreme Court, after Vaidhyanathan had finished giving a talk to the Law Librarians' Society of Washington, D.C. Since his speech ("How Fair and Useful Is Fair Use?") and our conversation was all about the fair use concept in the current environment, I wanted to use this article to step away from the legal code for a bit to discuss the context of fair use.

One of the reasons Vaidhyanathan's work is so refreshing is that he's not afraid to talk plainly about copyright. In this way, his lack of formal legal training becomes a benefit: He is unencumbered by having to undo legalese (an affliction from which I, for example, still suffer). In "How Fair and Useful Is Fair Use?" Vaidhyanathan talked about what he considers the fair use paradox: Case law upholding fair use is as strong as it ever has been, yet Section 107 is becoming less useful and less fair as a limitation on copyright.

Indeed, there have been several significant decisions over the past decade or so that suggest fair use is as strong as ever. Siva noted three prominent examples:

* Campbell v. Acuff Rose (a 1994 Supreme Court decision that defended the Too Live Crew's parody of Roy Orbison's classic rock song "Pretty Woman")

* SunTrust Bank v. Houghton Mifflin Company (a 2001 decision in which the llth Circuit Court of Appeals in Atlanta overturned a lower court's injunction levied against the publication of a fictional reinterpretation of Margaret Mitchell's Gone with the Wind)

* Kelly v. …

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