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Copyright: The Right to Pull Your Hair Out and Scream

As well as the committee charged with choosing a course management system for our campus (no new news to report just yet… still banging head against wall), I’m also on a committee that’s drafting a copyright policy and educational material about copyright for our campus. And now we’re stuck (again) because we’ve got a nice little policy that’s going before the admin council tomorrow morning, and we’ve got a nice little collection of educational material and decision aids, but now it turns out that the faculty really don’t want to know how to comply with the law. They want us to set up an office on campus that’ll do it for them. And I can TOTALLY sympathize. I wouldn’t want to wade through this on a regular basis, either, if someone else would do it for me. There are only two problems with this plan: it would reduce the purview of fair use, and it would be impossible to set up.

It would reduce fair use because an office of this type simply could not weigh the four factors effectively. This means that, when in doubt (which would be most of the time), they would have to err on the side of not getting sued, so they would become very quick to seek and pay for permission. As soon as you pay for a use that could have been fair, you’ve effectively increased the market for that work, and future uses would therefore be less fair. Fair use absolutely atrophies if no one exercises it. In the long run, this would increase the cost of copying, because more uses would require payment for permission. So if you need a bottom-line reason as well as a philosophical one there it is.

Even if we decided that this didn’t matter to us, there’s the whole impossibility of setting up such an outfit. We won’t get more staff to run this thing, and I imagine that even if we were funded and permitted to hire a whole office, we’d have a hard time recruiting copyright whipping-boys-and-girls.

So what can we do? We absolutely have to make compliance as easy as possible or no one will pay attention. But fair use, by far the most crucial and precious part of the whole operation, can only be deployed effectively by well-informed individuals who are weighing uses on a case-by-case basis.

Not only that, but our recent talks with faculty have revealed universal surprise that the library wasn’t checking up on the copyright status of everything being brought in and put on reserve even though it’s stated very clearly on everything we send out every term that it is up to the professor to check this and deliver copyright-cleared copies to us. Clearly, the message just isn’t clear enough or getting to our users at their point of need. Maybe a standard required waiver asking them to check either the box that says this is fair use or the box that says they’ve received permission, followed by a signature? It’s something to consider.

And may I just point out that citing and proper attribution have NOTHING to do with copyright. Aside from who, exactly, is supposed to insure that we’re all following copyright law, this seems to be the single greatest source of confusion on campus. I can’t tell you how often I’ve heard earnest and well-meaning professors, students, and staff tell me how much our educational materials are needed because so many people out there put together PowerPoint presentations or class papers that include images without attribution… You can cite every word, image, or sound and still be in violation of copyright law. You just won’t also be guilty of plagiarism.

While I’m on the subject, guidelines such as the Classroom Guidelines seem wonderful and helpful, but they aren’t failsafes, and they aren’t the law. Believe it or not, there’s no clause in the copyright law that mentions 10% of a book or the idea that you get one free use but have to pay after that. You can still get sued if you use less than 10%, and frequently you’d be just fine using more than 10%. Weighing the four factors is the only way to know for sure. (Luckily the University of Minnesota has created a tool that can help walk you through the four factors. We use it all the time at our college. Thanks UMN!)

Well, that’s enough screaming and pulling-of-hair for one night.