RE: Copyright, for-profit educational institutions, and distance education

[Brandon Butler <brandon@xxxxxxx>]

All,

Just to add a little to what's been said so far, I would think that the value
of fair use in this context is hard to underestimate, and that (with the usual
caveats about needing details) there is a strong likelihood that uses for
online teaching would be fair, all else being equal. Why else is a teacher
going to perform or display a work in the context of of an online course other
than to comment, criticize, illustrate, etc.? Unless the class is bogus (not
impossible given the lackluster reputation of for-profit institutions), there
will likely be a good fair use story to tell.

Principle One of the Code of Best Practices in Fair Use for Academic and
Research Libraries speaks directly to this issue. You can read more about the
Code here

On the issue of "transformativeness," I think it's important to remember that
courts don't use it in the colloquial sense. Judge Leval himself, who famously
coined the phrase, defined it in this way:

> I believe the answer to the question of justification turns primarily on
whether, and to what extent, the challenged use is transformative. The use
must be productive and must employ the quoted matter in a different manner or
for a different purpose from the original. [FN29] A quotation of copyrighted
material that merely repackages or republishes the original is unlikely to
pass the test; in Justice Story's words, it would merely "supersede the
objects" of the original. [FN30] If, on the other hand, the secondary use adds
value to the original--if the quoted matter is used as raw material,
transformed in the creation of new information, new aesthetics, new insights
and understandings-- this is the very type of activity that the fair use
doctrine intends to protect for the enrichment of society. [FN31]


While I understand the hesitation that some folks feel about the idea that
educational uses are "transformative" in the colloquial or popular sense -
teachers rarely "remix" or "collage" materials like Jeff Koons or Dangermouse
or whomever - surely educational uses are very often going to be
transformative in the way that Judge Leval describes, and that judges now
apply it. Material employed by a teacher in the course of distance learning
courses is surely "used as raw material, transformed in the creation of new
information, new aesthetics, new insights and understandings." R. Anthony
Reese has looked at the cases and verified that "transformative" use does not
require the creation of a new work; rather the key is a new purpose or context
for the use.

For more on this issue, you might be interested in Peter Jaszi's forthcoming
short article  on fair use and education in light of the courts' general turn
to transformativeness as the dominant way of thinking about fair use.

Best,
B

Brandon Butler | Director of Public Policy Initiatives | Association of
Research Libraries | brandon@xxxxxxx | http://policynotes.arl.org | @ARLpolicy
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