20.1 Fair use as a complement to open licensing  (Page 4/5)

Is that right?

Now, we recognize that all sorts of “Fair Use” is applied in traditional residential settings where materials are distributed to a small group of learners, frequently in non-digital formats. It seems that the stakes were raised when content started being published in digital formats in learning management systems and on other systems used for education. Within the context of much of the discussion on this blog, do you see the possibility of framing Fair Use to allow “reuse” for educational purposes, or do you think that reuse is antithetical to the Fair Use doctrine as it is currently understood/interpreted?

Pushing the question a little further, what is the role that you see of Fair Use in “Open Education” and what are some of its principal limitations/challenges as it is currently understood/interpreted?

Cheers, Ken

2. wayne mackintosh - november 17th, 2007 at 2:06 am

Hi Steve, Great post! Within the US legal system - fair use is a powerful doctrine. Sadly - this is not the case in other national jurisdictions. That said - I appreciate that your reflection is intended for an American audience.

Writing from outside the US - for me the important lesson for us should be the connection between free use and the first amendment to the use constitution. The free knowledge movement derives its meaning and purpose from “freedom of speech”. That’s an important link.

If ideas could speak - I’m sure they’d say that they want to be free! Its in the interests of the progression of knowledge for knowledge to be free. But hey - I’m talking to the converted!

I’d also interested in Ken’s question re how fair use is or can be applied in the digital domain. Its one thing to use a digital copy (photograph) of an artwork. What is the position on digitising a copyrighted work under the fair usage doctrine?

Looking forward to the discussions. Cheers Wayne

3. steve foerster - november 17th, 2007 at 2:11 pm

Ken, you’ve captured the point of my post very well. The ambiguity is an issue, in that the more educators engage in unnecessary copyright clearance, the more that copyright holders can argue that such compliance is a de facto community standard.

I’m not sure how useful the doctrine can be for reuse, since it’s meant as an affirmative defense for use of copyrighted materials on a case by case basis. However, I could see educators sharing examples of resources they’ve been able to use in classrooms because of clarified standards of fair use, which would be pretty close. Perhaps such an exchange of suggestions would be a way of bringing in educators to then consider open resources as well?

Wayne, it’s true that fair use is an American concept, but in the Commonwealth there’s a related concept called fair dealing: (External Link)

I’d be interested to know whether similar issues with community standards apply in Commonwealth jurisdictions, and whether a statement of best practices might therefore be useful in those countries as well.

-=Steve=-

4. ken udas - november 20th, 2007 at 6:09 am

Hello, I am wondering if there are some good resources that already frame the issue a bit here in the States and could be expanded. I would guess, that in many countries, even without a formal “Fair Use” or “Fair Dealing” doctrine, published content is used in the class as a norm, perhaps with national governments being silent on the issue. I just came across a resource titled The Teach act Finally Becomes Law , which outlines the Teach Act and points to some of the differences between how traditional classroom based education and distance learning is treated relative to Fair Use&the Teach Act