Contrasting Approach to "fair" - US Study v. AUCC "fair dealing policy"

Here’s a contrast in attitudes to the concept of "fair" in the context of copyright in the academic world.

Here’s a brand new study dated December 20, 2010 from Adler, Butler, Aurderheide and Jaszi in the USA. It favours an expansive approach to what is “fair” because the job of librarian is help faculty and students to learn and do research. The authors state:

Failure to employ fair use affirmatively and consistently impairs the accomplishment of
the academic and research libraries’ mission. Interviewees described downsizing,
postponing, and shelving courses, research projects, digitization initiatives, and exhibits
due to costs associated with seeking permission or making what seem to be tedious
case-by-case determinations of fair use. Scholars were denied access to materials, or put
to considerable hardship, because of constraints interviewees imposed on the use of
copyrighted materials. Some interviewees described providing disabled students with
lower levels of access than their peers for fear of violating copyright. Materials with
inherent flaws (e.g., books with acidic paper, and analog tape and film that will warp
and disintegrate over time) and in near-obsolete formats are languishing because some
interviewees were not comfortable acting under fair use where other reformatting
provisions may not apply. Interviewees were typically aware that they could go further,
but felt constrained in exercising fair use in various situations.

And this is in the USA, home of “fair use” , which is potentially far more liberating to teachers and students than “fair dealing”.

Contrast this with the recent “final” AUCC (Association of Universities and Colleges of Canada)  guidelines on fair use, which are so conservative, restrictive and risk averse that one could well wonder whether they originated from AC (Access Copyright ) or  AUCC.

Here’s the final  not quite final revised version of AUCC’s document, and here’s the August draft. For interest, I attach a redlined version comparing the two.  Interestingly, the revised version, which I understand dates from December 7, 2010, omits the reference to the six part test from the SCC in CCH v. LSUC - which would be useful to inform and empower librarians and others in the university community.

Also, interestingly, the document still does not use the precise phrase “research or private study”, which is the carefully drafted terminology in s. 29 that was meant to convey the notion that, while “study” must be “private” (whatever that means), “research” is not so delimited.

HK

Obama's Royalties

President Obama made $2.5 million last year from his two popular books. And he has other big publishing plans, as is being widely reported.

Somehow, I don't think that he's about to quit his day job. But I wonder whether this will lead him to believe that, if copyright is good, even more of it must be better.

HK

No DOJ Subsidies for RIAA etc. Litigation

The Bush administration has stopped an attempt by the RIAA, MPAA and others to turn the US Department of Justice into a taxpayer funded civil litigation firm acting for the entertainment industry. The Bill almost got passed. It was opposed mainly by the EFF and the American Library Association.

Here's yesterday's press release.

For Immediate Release: Contact: Jennifer Hoelzer (Wyden): (202) 224-3789

September 24, 2008

Senate Drops Civil Enforcement Provisions from Intellectual Property Act

Washington, DC— The U.S. Senate Judiciary Committee today removed provisions from S.3325, the Prioritizing Resources and Organization for Intellectual Property Act of 2008, that would have involved federal prosecutors in civil copyright cases. The provision was removed at the request of U.S. Senator Ron Wyden (D-Ore) who released the following statement:

"I am happy to announce that after substantial discussions Chairman Leahy and the Senate Judiciary Committee have agreed to remove provisions from S.3325 that would have resulted in a massive gift of scarce federal resources to Hollywood and the recording industry. I regret that the legislation still includes provisions that overzealous federal prosecutors could misconstrue to allow the seizure of important components of our Internet infrastructure. I will work with Senator Leahy to clarify these provisions in the future.

"I congratulate the committee on their strong efforts to improve enforcement of our anti-counterfeiting laws and hope those efforts will aid federal efforts to protect American producers and American jobs.

"The removal of Title 1 from the original version of S.3325 eliminates a grant of federal power that was not asked for, or desired by the Justice Department. It would have had the effect of turning our federal law enforcement personnel into collections agents for industries that are more than able of taking care of themselves. The Justice Department has made clear that Title 1 would have resulted in the diversion of federal resources from important criminal actions into civil matters of questionable merit.

"Unleashing federal prosecutors on Internet communications and discourse would also have a chilling effect on both commercial activity and free expression. Both the individual desire to share ideas and creativity more broadly and the drive of business to expand their markets and reach new customers have been the engines behind the most dynamic and vital new industry in American history. This is why it is so important that unintended consequences not be allowed to tax, throttle, or otherwise inhibit those creative forces.

"With over 30,000 civil suits filed by a single entity against individual Americans it is clear that industry is more than able to enforce its intellectual property rights in civil courts without the contribution of taxpayer funds and busy federal prosecutors. I continue to urge the content industries to seek out distribution models that take into account, and profit from, the new technologies that have revolutionized the way Americans communicate, learn and share information.

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HK