Geist’s four principles are hard to argue with.  A copyright law that can last in today’s environment must, he says, be balanced, technologically neutral, simple & clear, and flexible.  That last point, flexibility, is the real key, since designing a law that can be adapted to new uses and new technologies, many of which are literally unforeseeable, requires that the focus be on first principles rather than outcomes.  This is different than the tax code, and it may provide the path to combining fairness with simplicity.

The principle of flexibility explains why fair use is an effective provision of US copyright law.  As frustrated as some of us get trying to navigate the deep and dangerous waters of fair use, it has allowed US law to adapt to new situations and technologies without great stresses.  In fact, Geist’s brief comment on fair dealing in Canadian law suggests (implicitly) that it should be more like US fair use; he argues that the catalog of fair dealing exceptions should be made “illustrative rather than exhaustive,” so courts would be free to build on it as technologies change.

In recent posts I have spoken of adapting fair use so that it gives more leeway to academic works than to other, more commercial intellectual properties.  Even though Geist is explicit in his post that “Flexibility takes a general purpose law and ensures that it works for stakeholders across the spectrum, whether documentary filmmakers, musicians, teachers, researchers , businesses, or consumers,” I do not think there is any contradiction here with asking that academic works be treated differently in the fair use analysis then a recently released movie, for example, might be.  Fair use would be applied in the same way to each, but because fair use appeals to the motivating principles of copyright law, it asks us to examine the circumstances of each type of material and each kind of use and measure them against those principles.  This is precisely how flexibility is accomplished, and I argue that the result of this uniform application of principles will be different outcomes for different types of works.

Geist’s approach to digital locks — DRM systems — is quite similar, asking us to look at first principles that underpin copyright law when deciding how to treat any particular technology.  Specifically, he suggests that forbidding or permitting the circumvention of such digital locks must be tied to the intended use for which the lock is “picked” if copyright balance is to be respected.  An added advantage of this approach is that it is much simpler — another core principle — than the current approach in the US, where categorical rules are enacted and then a series of complex exceptions are articulated every three years.  We will see shortly how that process will play out for the next three years, since the exceptions will be announce in a couple of months, but it is inevitable that the result will be unfair to some stakeholders and probably disappointing to all.  Far better that we heed Geist’s call for an approach based on first principles.  Perhaps Canada, as it considers a comprehensive overhaul of copyright law, can lead the way.

The second fair use factor – the nature of the copyrighted work – is usually treated very mechanically by courts, and sometimes is ignored altogether. When it is discussed, it is in a few sentences addressed to only two issues – whether the work is published or not and whether it is creative or factual. Kasunic, who is Principal Legal Advisor to the Copyright Office, suggests that this treatment seriously undervalues the importance of this part of the fair use analysis. He argues convincingly that the second factor, when examined carefully, offers a wealth of information that could improve consideration of all of the fair use factors. Indeed, one of his major points is that the fair use factors are a guide for fact-gathering, not a mechanical “tally sheet” or scorecard.

If courts pursued the probing questions about the nature of an original work that Kasunic suggests when considering a claim of fair use, the result for academic work would be, I think, truly revolutionary, because those courts would learn how much more leeway should be accorded to academic work than would be appropriate for other types of work. Kasunic argues that part of the scrutiny that should be applied to the original work would ask what the particular incentive structure for that type of work is. When the purpose of copyright law is understood properly, as a mechanism to give incentives for creation, the expectations of the authors and creators are really the only guide for what uses should be compensated and what uses need not be. Thus it is important to ask what the normal incentives for creators of that particular type of work are and what markets supply those incentives. Unexpected markets, or markets that benefit only secondary owners of copyrights rather than authors, are not relevant in deciding if a particular use is fair or not.

When academic work is considered, it is clear that the scope of fair use would be very broad under this more sensitive and sensible analysis. Academics are usually not paid for their most frequent works of authorship, journal articles, and compensation for books authors is meager. Thus the protection of various markets s not necessary for this type of work in order to effectuate the purpose of copyright; incentives for authors clearly come from some place else. Also, it is usually a secondary copyright holder who is trying to protect those markets, which further reduces their value as an incentive for creation. Finally, secondary markets, such as permission fees for electronic reserves and course packs are usually wholly unexpected, and therefore have no incentive value, from the point of view of academic authors. In fact, I once had a faculty author ask me if a check from the Copyright Clearance Center was some kind of scam, so unexpected was the tiny windfall he was being offered.

As Kasunic points out, different types of authorship receive different rights under our copyright law; it is logical, therefore, to also think about fair use differently depending on the specific facts that surround the creation of a particular category of work. Academic works would, in such a fact-specific analysis, be subject to much more fair use than a commercial novel, film or song. Indeed, Kasunic selects as the example with which he closes his article the case of academic authors and fair uses claims for course packs and electronic reserves. Although he does not spell out a conclusion, it is clear from his discussion that the facts uncovered by the searching analysis he recommends would greatly favor a liberal application of fair use for that type of work.

Since an actual case such as Kasunic describes is currently being litigated – the lawsuit against Georgia State University alleging copyright infringement in the distribution of electronic course readings – it is hard to resist reading his article with that case in mind. Kasunic presents, to my mind, a compelling argument that the court should look very careful at why the works in question were created in the first place and focus a fair use finding on the incentives for creation and not extraneous claims for windfall profits made by secondary copyright holders. This would be a sensible application of a factor that has largely been treated as unimportant; it would take seriously the intent of Congress and their instructions to courts when they codified section 107. And it would dramatically increase the likelihood that many of the uses in question at Georgia State (at least those uses that involve academic writings) would be found to be fair use.

First, I was struck by the excellent arguments made about how vital fair use is to supporting new creation, especially in the realm of creative literature.  As theologians (and Julie Andrews) have known for years, nothing comes from nothing, and the edifice of creative writing is always built on an extensive foundation.  From Shakespeare to Leonard Bernstein, Charles Lamb to Stanley Fish, new authors and literary critics use the grist provided by earlier writers to feed their imaginative mills.  In this context, the brief quotes a really amazing question from the judge who issued the injunction being challenged.  During the hearing she asked, in response to the argument that “Sixty Years Later” offered readers a new way of looking at the now quite old story of “Catcher,” “do people need [the new] version in order to view the story differently?  How about just reading it twice, or maybe five years later..”  Of course, this is not how literature or literary criticism works.  New works are never sui generis (not even Catcher in the Rye), and Judge Batts’ logic would deprive each new author of those giants upon whose shoulders, Issac Newton famously reminded us, we must all stand if we wish to see clearly.  Salinger may not think of himself as such a giant (and I admit I do not either), but he still cannot be afforded the level of control over future works that he seeks and that the court erroneously granted to him.

The depth of the problem is illustrated by the other aspect of the brief that caught my attention.  I had noted before that Judge Batts argues that some authors might actually have an additional incentive to write if they new that they would be protected from sequels and criticism; if they were assured, in effect, that they would have the last word regarding the characters, events and ideas about which they wrote.  What I had not seen, but the brief points out, is that the Judge is here importing the concept of “moral rights” into US law.  Many countries do recognize the moral rights of attribution and “integrity” — the right to protect a work from alteration.  The United States does not recognize these rights, with one very limited exception, and restricts the copyright incentive to economic rewards.  The District Court ignores this policy decision, presumably made to support the free expression of ideas that is necessary for a democratic society, in favor of serving the desire of a author from a previous decade to exercise extraordinary control over the future of the ideas and characters he published.  As the brief points out, the is no logical endpoint to the reasoning evoked here; if an author were incentivized by protection from negative reviews or parodies, shouldn’t we forbid those as well?  This is not how copyright works, because its fundamental purpose is to encourage new creativity, while the Judge’s reasoning would create a sterile world in which creative dialogue would be impossible.

One of the news reports about the filing of this brief carries the title College Libraries v. J.D. Salinger.  It struck me as I read the brief how unfair that tile is.  Librarians traditionally have great respect for authors, and libraries serve authorship by being places where the great ideas and expressions of the past are readily accessible to current writers and scholars.  Unfortunately, it is Salinger’s efforts to use copyright to ban a new book that is incompatible with both the mission of libraries and the purpose of copyright law.  Both libraries and copyright law support fundamental democratic values — free expression and the “marketplace of ideas” that asks each new intellectual creation to prove its worth by submitting to examination, criticism and even parody.  Occasionally copyright is wielded as a weapon, as in this case, to try an insulate some author from that rough-and-tumble exchange of idea.  When libraries oppose those efforts, they are calling both copyright law and authors in a democratic society to stay true to themselves.

The SAA released a revised version of their Statement of Best Practices on Orphan Works on June 17.  In the statement about the purpose of the report, the SAA makes specific reference to the two bills that were considered by Congress in 2008 as attempts to solve the orphan works problem (I blogged about those bills here and here).  The revised statement of best practices is an explicit attempt to define a term that was used in those bills — a “reasonably diligent search” for a copyright holder.  It would be only after such a search that a remission of the damages for a user of an orphan work would be available under these bills, and the SAA is trying to suggests standards and practices that define what is reasonable and diligent in the real world of archival materials.

It is important to realize that there are two different approaches to using orphan works.  The bills proposed in Congress take a remedies-based approach, offering a substantial reduction of the possible penalties for users of orphan works if they first undertake a reasonably diligent search and, subsequently, a rights holder surfaces and demands compensation.  The SAA statement of best practices is directly related to this approach and undertakes to define the steps necessary if such a search requirement is enacted.  But the statement of best practices also recognizes another option, reliance on fair use.  The statement says “Fair use may be a better rationale for creating a copy or publishing a copy of a document,” but it does not make an explicit connection between fair use and the best practices outlined in the remainder of the statement.

Fair use is an exception to copyright’s monopoly that already exists and is currently available to potential users of orphan works.  The value of the “reasonably diligent search” in the fair use context is that it would have, I believe, a profound effect on the fourth fair use factor, the impact on potential markets for the work.  If a search such as is suggested in the SAA statement is carried out and no rights holder can be located, that would go a long way toward showing that no market is being harmed by the use (especially if the use itself is educational and non-profit).  In this situation, it is hard to imagine a court actually rejecting a fair use defense, and even if such a defense did fail, archivists and other employees of non-profit institutions could still fall back on the partial remission of damages that is provided in section 504(c)(2) of the Copyright Act.  As the SAA notes, a reasonable belief in fair use, even when a court disagrees in the end, “is sufficient to protect the archivist from statutory damages.”  Such protection is not as complete as would be provided by an orphan works bill, but it is is nonetheless substantial.  In the end, it really might make more sense for educational users to rely on fair use when contemplating a use of an orphan work, after employing some or all of the strategies in the SAA statement of best practices to try and find a rights holder.  Waiting for Congressional action may be both impractical and unnecessary.

Whether orphan works legislation proves useful or not will depend in large part on the details of any final bill.  There were strong hints last time that in order to gain approval, a bill would become so burdensome and expensive that the library and archives community would be better off without new legislation, simply relying on fair use.  No doubt that debate will be revived if any orphan works bills are re-introduced.  But the SAA has made an important contribution from either perspective that one takes.  In regard to potential legislation, they have offered a standard that legislators should consider as they draft a bill, as well as one that those concerned about the burden created by legislation can look at to measure the depth of the problem.  In regard to those who would rely on fair use, the statement of best practices provides a set of guidelines that can help give users confidence that they are truly making a good faith fair use effort.

There are two obvious problems with the checklist, it seems to me.  First, it can encourages a falsely mechanical view of fair use, where a “score” of seven pro versus six con, for example, means something is definitely fair use, while a one-digit reversal means it is not.  That, of course, is not how fair use really works, and no score card can actually predict the results of a judicial evaluation of the fair use factors.  Second, the checklist would be pretty easy to manipulate so that it tends toward the result someone is seeking.  There has been some discussion, for example, about whether or not there needs to be an equal number of check boxes on each side (favoring fair use v. disfavoring fair use) in order for the checklist to itself be fair.  Although this seems plausible, it is important to remember that courts have not necessarily articulated an equal number of circumstances to be considered on each side of the argument, and the checklist seeks to guide its user through the considerations that are actually in play, not some artificial list created without regard to case law for the sake of balance.

Against these two problems, both of which can be quite real, there are also a couple of sound reasons for using the checklist.  First, the very mechanical nature that makes it an imperfect tool also makes it one that can be used quickly and without an entire course in copyright law by staff and faculty.  These are the major groups that need to make fair use decisions day in and day out; the checklist is a way to at least be sure that they think about all of the factors that are relevant.  There are many people on college campuses that seem to believe that any educational use is a fair use, and the checklist helps counter that simplistic belief and remind all of its users of the full-range of necessary considerations.  Second, the checklist provides documentary evidence that a full fair use analysis was undertaken.  Since part of the “remedies” section of the copyright act gives college and university employees partial protection from damages for infringement when they make a good faith fair use decision, even if they turn out to be wrong, evidence of detailed analysis helps protect the institution from potential liability.

These two arguments in support of using a checklist may help explain the ambivalence that the publishers have shown toward its use.  The Association of American Publishers has announced support for several university policies that include the checklist, including Cornell’s and Syracuse’s, but they have lately seemed more hostile towards it.   It is easy to see why, really.  On the one hand, it is in publisher’s interest to have university employees get beyond a simplistic view of fair use, which is usually too generous, and look more closely at the full range of considerations that need to be taken into account (this explains, I think, the use of a version of the checklist by the Copyright Clearance Center as well).  On the other hand, that deeper consideration will, itself, make universities less attractive targets for litigation, which seems to be the chosen weapon in the battle to narrow educational fair use.

I have to admit that I too feel a good deal of ambivalence toward the checklist, albeit for somewhat different reasons.  I would like every staff and faculty member who must make fair use decisions to have a complete and nuanced view of the doctrine they are applying.  But I recognize how impossible that is.  Until our campuses are populated entirely by IP lawyers (may that day never come!), I will continue to believe that the fair use checklist is a highly imperfect, but even more highly necessary, tool for navigating the traitorous waters of contemporary fair use.

First, as I said originally, Judge Batts does not adequately address the idea/expression dichotomy built into copyright law in section 102(b).  She acknowledges the concept early on in the ruling, even citing it as one of the elements that reconciles copyright with the First Amendment, but then does not mention it again.  The result of this omission is that she never tries, in her analysis of the alleged similarities between “Catcher in the Rye” and “Forty Years Later” to distinguish protectable from non-protectable elements before making the comparison.  This is standard practice in the substantial similarity analysis, and its absence leads the Judge to cite some amazing things as evidence of copyright infringement, such as the fact that both characters are liars, both complain a lot, and both travel to NYC.

It is certainly true that one can infringe in ways other than verbatim copying, but one must still show substantial similarity with protected expression; it is not enough to say that the protagonist in Catcher is delineated in words and therefore any word picture that is similar, even merely because it uses similar ideas, must infringe. I am reminded of the case brought against Dan Brown for infringing the copyright in “Holy Blood, Holy Grail” with his “The Da Vinci Code.”  The basic idea in the two books is fundamentally the same, but the case was dismissed (in the UK) because the court separated out unprotectable ideas and then found no substantial similarity.  That should have been the procedure, and the outcome, in the Salinger case as well.

I think a good deal of the problem is that the Judge spends too much time on the discussion of whether or not the new work is a parody of the old.  Even when she turns to other transformative purposes in her analysis, the Judge never really moves past the parody issue, since she focuses entirely on the (critical) use of J.D. Salinger as a character in the new novel.  But there are many kinds of transformative uses beyond these two types (which are really not very different); the Judge needed to consider the broad range of purposes listed in section 107 as examples of fair use in order to evaluate the full scope of possible transformation.

A clue that there is a problem with the Salinger ruling is that Judge Batts finds pretty explicitly that no unauthorized sequels would ever be non-infringing, but she offers no guidance at all about where the line is between impermissible sequels and other types of work, such as reference works that describe and analyze characters, settings and plots.  Essentially, the exclusive right over derivative works has been allowed to swallow the idea/expression distinction that is really vital to American copyright law, and the Judge offers us no way to mitigate or reconcile that result.  In fact, she tries rather feebly to make something positive out of her error here by suggesting that the right to prevent a sequel might actually give an incentive to an author to write a novel, secure in the knowledge that they will have the last word about every thought or idea they express.  Even if one assumes lots of authors as unsocial and controlling as Salinger, this is not a recipe for promoting the arts, whatever the Judge tries to argue.

This severe limitation on future creativity points up the last problem I want to cite in the Salinger ruling, and in many ways it is the most damaging.  Even though it is part of the required findings for issuing a preliminary injunction, Judge Batts never considers the balance of hardships between the parties if she grants the injunction, nor does she weigh the public implications of this prior restraint of speech, except with this odd argument about incentivizing authors who cannot tolerate followers.  These considerations are not optional when ruling on a preliminary injunction, and their absence should lead to reversal at the appellate level.   But even more important than following the letter of the Federal Rules of Civil Procedure is recognizing that it is absolutely vital that the public interest be considered whenever a judge is considering a request to ban a book, lest he or she run roughshod over the Constitution they are sworn to uphold.

The real problem with this ruling is not that it is uninformed, but that it misses the forest (including the public interest) due to its nearly exclusive focus on one tree.

First there was the fair use argument.  In a very similar case involving a retelling of the the story of “Gone With the Wind” from the point of view of one of the slaves at Tara, the Eleventh Circuit Court of Appeal correctly recognized that the new work was a fair use of material copied from “Gone with the Wind.”  And in the recent decision finding that “The Harry Potter Lexicon” was not a fair use,  Judge Robert Patterson, in the same judicial district as Judge Batts, went out of his way to make clear that an author of an original work cannot control all sequels, prequels and reference works.  Judge Patterson even writes, citing other precedents in the Circuit, that “a work is not derivative, however, simply because it is “based upon” the preexisting work.” (p. 39)  But that erroneous conclusion is exactly the foundation of Judge Batts’ decision.

Judge Batts seems to know only one fair use precedent — the “Oh Pretty Woman” case from the Supreme Court — and she applies it slavishly.  Since she does not think that the new book is an actual parody of the original, she holds that it is an infringing derivative work.  But it should be clear to anyone who is a federal district court judge that there are other kinds of fair use than parody; indeed, a quick read of section 107 itself would get one that far.

The real problem, however, is that this should not have been decided as a fair use issue.  In the two cases cited above, there was a substantial amount of material that was actually copied from an original into the new work.  In the case of the “Wind Done Gone,” specific dialogue was reproduced, with commentary and perspective from the “new” protagonist.  In the case of “Coming Through the Rye,” there seems to be no evidence of actual expression that is copied in the sequel.  Judge Batts focuses her objection on the conclusion that “Holden Caufield is delineated by words” and that therefore Holden is copyrighted.  But this ignores the fundamental distinction between expression, which is protected by copyright, and ideas, which are not.  All ideas are delineated by words, but that does not give the ideas themselves, even the idea of a solipsistic teenager who inevitably grows up, copyright protection.  Even before she reads section 107, Judge Batts needs to read section 102(b) of the Copyright Act.

Indeed, her decision is so unaccountable that its leads this commentator at TechDirt to question whether there really is an idea/expression dichotomy in copyright law at all.  But that dichotomy carries a lot of weight in US law; it is frequently cited, including by the Supreme Court, as one of the basic concepts (along with fair use) that keeps copyright law from becoming an infringement of free speech.  Now that Judge Batts has read the distinction out of the law (or failed to read the law at all), the conflict with free speech becomes all too apparent, when a new book can be banned in the US because an old author doesn’t like it.

So what good can come from this ridiculous decision?  First, it should be, and very likely will be, overturned on appeal.  But more importantly, it should prompt Congress to look again at the exclusive right, granted in copyright law, to prepare derivative works.  That right has not always been part of copyright; there was a time when even abridgments and translations were held not to infringe on an original.  The pendulum has now swung the other way, and we grossly overprotect some original works from legitimate reuse because we think those new creations are derivative works.  As is frequently pointed out, Shakespeare could not have written his plays under today’s copyright regime in the US.  It is time for clearer definition of what is and, more importantly, what is not a derivative work that is entitled to protection.  If outrage over Judge Batts’ decision can prompt such clarity, some good might come from this very bad ruling.

This gets a little technical, so bear with me.

When the lawsuit was first filed, lots of librarians and other academics read the complaint and thought, if that is what GSU has been doing, they have really been pushing the envelope.  The copyright policy under which the University System of Georgia operated was the work of a brilliant scholar, but it represented a very liberal interpretation of the law.  The complaint outlined objections to the policy, as pushing the interpretation of fair use too far, as well as citing practices that seemed outside even the broad scope of the Georgia policy.

Earlier this year, the Georgia Regents adopted a new copyright policy after a select committee reviewed and entirely rewrote the older one.  The new policy is shorter, more easily comprehended and more pragmatic.  In fact, it comes a lot closer than its predecessor to reflecting policies around electronic course content that are common on many campuses.

After this new policy was adopted, attorneys for GSU filed a motion for a “protective order” which would state that only information about electronic course content going forward, under the new policy, could be “discovered” by the plaintiffs.  GSU argued that since they were a state institution, and therefore entitled to immunity from damages, the plaintiffs could only get prospective relief (an injunction) and therefore should be limited to information about practices related to the policy under which GSU would go forward.  After some legal maneuvering, the Judge granted this request last week.

As I read the Judge’s decision on this motion, the only reason the Plaintiffs now need to know anything about prior practices at GSU would be to argue that the new policy has not really changed anything. And Judge Evans has now held that enough has already been revealed about past practices to support or refute that argument.

For the rest of us, this means that the decision about fair use, if the case gets that far, will be a lot more relevant to e-reserve and course management systems use around the country.  That, of course, could be a good thing or a bad thing, depending on how the decision goes.  But it seems the decision will be based on policy and practice a lot closer to what many schools use (assuming, of course, that the new policy really does indicate changes in practice).  Presumably a ruling in favor of fair use is a little more likely now that it will be decided on the basis of this more pragmatic policy.  And such a ruling would more clearly support wide-spread practices in higher education.  On the other hand, a ruling against Georgia State, if it happens, would be much harder for the rest of us to explain away and distinguish from our own practices.

When I spoke to the eIFL IP conference back in March, this history of fair use was in my mind as we discussed the flexibility that fair use offers versus the certainty offered by more specific exceptions for research and teaching found in the copyright laws of most other countries.  I blogged about those reflections a couple of months ago, and also wrote recently about the history of fair use in the US.

Now I have just finished reading an article by Duke Law Professor Jerome Reichman and Professor Ruth Okediji of the Univerisity of Minnesote Law School that has renewed and deepened these comparative reflections about fair use and international copyright law.  The paper, “Empowering Digitally Integrated Scientific Research: The Pivotal Role of Copyright Law’s Limitations and Exceptions,” is a sweeping discussion of the potential inhibition of science and international development caused by copyright law’s “one-way ratchet” in international fora, by which levels of protection keep getting increased while limitations and exceptions have been, until recently, largely ignored.  But I want to focus briefly on a small part of the discussion by Reichman and Okediji about the relationship of fair use to limitations and exceptions in the rest of the world.

The point I want to emphasis is fairly simple (probably because I have not fully digested the article yet).  It is simply that fair use and the “three-step test” used to evaluate limitations and exceptions under international agreements have something to teach each other.  The three step test, found in the Berne Convention in article 9.2 and in several other places in international IP agreements, says that limitations and exceptions adopted into national copyright laws should apply to “certain special cases,” not “conflict with normal exploitation” of a work, and not “unreasonably prejudice the legitimate interests” of a rights holder.  There has been a great deal of debate about how to interpret these terms and how to apply this test; the major content industries have latched onto its language to suggest that only the narrowest of exceptions can pass muster.

Reichman and Okediji suggest that the interpretation of the three-step test should proceed more in the way fair use is interpreted, as an equitable balancing test where there is no “score keeping” of the factors, nor must each factor favor the same side of a debate.  Instead, they argue, quoting the Max Planck Institute’s declaration on the subject, courts should weigh these three steps in light of the circumstances and the normative values that IP law tries to embody.  In short, they see the three-step test as an “equitable rule of reason,” as fair use has been called for years.

On the other hand, Reichman and Okediji also find a lesson for fair use in an examination of the three-step test.  One reason judges are sometimes reluctant to apply fair use in a given situation is that it is an “all or nothing” proposition.  If a work is fair use, the rights holder is not entitled to any compensation for the use.  As the authors see the three-step test, it suggests the lesson that sometimes a use may serve the public good to such a degree that, in the circumstances, no compensation is called for.  But they also recognize that there may be situations where the use should be allowed, but equitable compensation paid to the rights holder.  They suggest that situations in which the use serves a normative public good but also generates revenue, a rights holder could deserve compensation from those revenues.  Thus fair use would become a mechanism for imposing, in some circumstances, a compulsory license for a particular use rather than a free pass.

This is a fascinating suggestion, and one wonders whether judges could, or would, make this change to fair use without statutory amendment.  Congress specifically said, when it incorporated fair use into the law, that that doctrine was left free for further interpretation.  In any case, this is only one of a compelling series of points that Reichman and Okediji make about the relationship between copyright law and the progress of science around the world.

First, because it is the most general, is this new web site called “Teaching Copyright” from the Electronic Frontier Foundation.  This is a full-scale online curriculum designed to teach students about copyright,  It is intentionally offered to counter some of the educational efforts of the music and movie industries, which tend to focus heavily on what is not allow and try to avoid mentioning fair use or other exceptions that benefit users and support new creativity.

Second is what I like to call the most boring seven minutes on YouTube.  I realize that there is great competition for that honor, but this video in which I discuss the copyright and privacy issues involved in recording campus lectures and classes for Internet distribution surely has a claim.  It was made at the request of the Duke Office of News and Communications, and I have reason to hope it is helpful, even if it is not exciting.  If viewers are seeking entertainment after listening to me drone through the rights issues they need to consider, it is worth while looking around at the other videos on the Duke Libraries YouTube channel; many are much more exciting.

Next is this video from JISC on Intellectual Property Rights in Web 2.0 world.  It is a cute, colorful and nicely detailed discussion of rights and permissions issues that need to be considered as one creates new content for the web, and it points to an “online diagnostic tool” that will walk one through the issues in greater detail.  One warning, however, is that because this video and diagnostic tool are created in reference to UK law, where there is no fair use provision, their suggestions for when permission is needed must be reconsidered by US citizen in the light of our fair use provision.  Nevertheless, this is a helpful way of evaluating the issues and the various strands of rights that have to be considered, even if the conclusions will seem too strict to Americans.

The antidote to JISC’s lack of reference to fair use is this final video from the Center for Social Media on Fair Use and Online Video.  The Center has been a great champion of fair use through its work to create best practices documents to guide filmmakes and teachers of media literacy.  Now this video, and the accompanying best practices that it refers to, make the process of figuring out how and when fair use applies to allow a use without permission from the rights holder both clearer and rather entertaining.  This, and all of the resources mentioned above, are additional tools for the ongoin effort to clarify copyright for our students, staff and faculty; it is nice to be able to point to such a array of different, and amusing, media