Avoid Fared Use: Assert Fair Use

Inside Higher Ed has an essay by Tarleton Gillespie -- "Between What’s Right and What’s Easy" (http://insidehighered.com/views/2005/10/21/gillespie) -- which argues that technologies such as the Copyright Clearance Center's new plugin for Blackboard (and soon, with the merger, WebCT as well most likely) that is designed to ease the ability to seek permission for using materials and content in one's course are a bad idea.

He writes:

Sometimes our tools are our politics, and that’s not always a good thing.

Even if the Blackboard mechanism allows instructors simply not to send their information to CCC for clearance (and it is unclear if it is, or eventually could become, a compulsory mechanism), the simple fact that clearance is becoming a technical default means that more and more instructors will default to it rather than invoking fair use.

The power of defaults is that they demarcate the “norm”; the protection of pedagogy and criticism envisioned in fair use will increasingly deteriorate as automatic clearance is made easier, more obvious, and automatic.

As Gillespie explains, the view of Fair Use implicit in technologies for making permission easier is that Fair Use is a practical solution to the difficulty of getting permission. But Fair Use is not, of course, a recourse when finding the copyright holder is too hard. It's a protection that promotes free speech, open inquiry, the ability to critique, and the need to study.

Gillespie calls for "educators, scholars, librarians, and universities . . to fight for a more robust protection of fair use in the digital realm, demanding that making “multiple copies for classroom use” means posting materials into Blackboard without needing to seek the permission of the copyright owners to do so."

Gillepie's right.

One of the advantages of learning management tools such as WebCT, Blackboard, Moodle, Sakai, Desire2Learn, Angel, eCollege and other systems that make it possible to put course activities and content in a virtual space only a professor and his or her students can enter, is that it makes it easier to assert Fair Use.

Traditionally there have been four Fair Use factors. The UT Systems' Copyright Crash Course list them as:

1. What is the character of the use?
2. What is the nature of the work to be used?
3. How much of the work will you use?
4. What effect would this use have on the market for the original or for permissions if the use were widespread?

The great thing about a tool such as Blackboard and the others mentioned above is that they reduced the effect on the market to almost nil. Content is not put on the open WWW; it's locked behind a classroom wall.

Now that's flipped. Because it's behind a certain classroom wall --Blackboard's-- the default is at risk of moving from Fair to Use to Fared to Use. From a use based on fairness to one based on supplication. And if you ask for permission and the costs are too high or someone says no, what then?

So questions to consider:

1. Will the CCC plugin be required in future versions of BB?
2. Will campus IT departments and deans make the call as to whether the plugin is used or will academic department heads and faculty?
3. If the CCC plugin is required on your campus or for your course, will you be required to use it? Will it function automatically everytime you upload content?
4. Or, should permission be sought for every use of a source in an educational setting? Should Fair Use go away?