Fair Use Protection For Learning Should Be Applauded, But Not Limited To Universities
from the good-news dept
Following the recent pro-fair use rulings concerning Georgia State’s e-reserves and book scanning efforts by a bunch of colleges and universities in the HathiTrust case, Siva Vaidhyanathan has a good article pointing out that these two rulings recognize that universities are “vast copy machines” and that’s a very good thing.
…these cases strengthen the claim that universities and their libraries have a special place in copyright law because they have a special place in society. Courts and even Congress have long acknowledged the essential role of copying in the educational process. That’s why the preamble to the section of the 1976 U.S. Copyright Act that outlines “fair use” specifies “teaching (including multiple copies for classroom use), scholarship, or research” as examples of “fair uses”—uses that, although they involve the copying of protected material, are considered noninfringing because they enable essential public goods.
Universities are not copyright-free zones—far from it. But they do perform special services that often demand flexibility and liberties that enable them to “promote the progress of science and useful arts,” the core mission of copyright as declared by the U.S. Constitution.
I actually think that Siva underplays the importance of learning in copyright — as that was its original intent. The Constitutional clause concerning copyright talks about “promoting the progress of science” — which at the time it was written meant “learning,” and the very first Copyright Act in the US was actually entitled “An Act for the Encouragement of Learning.”
That said, I’m a bit disappointed that Siva then takes that storyline even further to suggest that universities deserve special protections against copyright enforcement that should not apply elsewhere. For example, he insists that while the HathiTrust ruling finds fair use for universities in scanning books (even if the scanning is done by Google) it should not apply to Google scanning books itself:
In any event, we are never going to see that operatic courtroom showdown between Google and publishing industry over whether the sweeping scanning of millions of books for explicitly commercial purposes constitutes a fair use by Google. I have written many times over the years that I am dubious of the strength of Google’s argument, and nothing in either the settlement news or the HathiTrust case has undermined my conclusion.
… Google is not a library. It is not a university. It is not a public service. It is a business. Too often we forget those distinctions. The project of creating, maintaining, and offering vast collections of digital material should be something that universities and libraries control, not something we depend on one company to handle.
I have long argued exactly the opposite, that Google’s book scanning project should absolutely be seen as fair use as well. The use is clearly transformative and most of the evidence suggests it increases, rather than harms, sales. But, more importantly, it really is creating a tremendous library index that will help people find information and learn. I think Siva is going way too far in suggesting that universities should get special treatment. People learn from all sorts of places, not just universities. And we shouldn’t carve out special rules for universities that, by default, harm those who do not attend or cannot afford to attend those universities. Part of the wonder of something like Google’s book scanning project (and other similar projects, such as the one by the Internet Archive) is that it helps make these works accessible to all — and we should be encouraging that for the sake of learning across the board, rather than just for a few institutions.