20.1 Fair use as a complement to open licensing  (Page 2/5)

The second consideration is the nature of the copyrighted work. This includes whether the work is fiction or non-fiction, and takes into account the concept of “idea-expression dichotomy,” which holds that facts may not be copyrighted, only expressions of them can be. This consideration also allows for fair use of non-published material.

The third consideration is the amount and substantiality of the work copied. This consideration explains why a single textbook cannot simply be (legally) copied in its entirety for each student to use even though “teaching (including multiple copies for classroom use), scholarship, or research” is specifically listed as part of the rationale for this section of legislation. There is no simple percentage, however, that can be used to determine whether this consideration has been met. Even copying a small portion of a work may not be fair use if it is considered to be the core of the larger work. Recent court decisions have strengthened this consideration, particularly for music sampling, for which fair use essentially no longer applies.

The fourth consideration is the effect of the copy’s monetary value on the original work. The more the copying might negatively affect the monetary value of the original, the weaker the claim to fair use becomes. Whether fair use may actually increase the value of the original work through popularizing it is not often discussed.

The trouble with fair use

Fair use would seem to be a great option for American educators. The ability to choose between free use of an ever increasing set of open materials and limited use of the vast sea of closed materials might seem enviable. But there are pitfalls involved with fair use that dramatically limit its utility.

Most importantly, even though education is specifically listed as a core reason for why there is a fair use doctrine at all, and thus the first consideration is strongly on the side of educators, the other considerations are also weighed in making the determination. This leads to a situation in which four considerations, some of which are more ambiguous than others, are all weighed on a case by case basis, making it nearly impossible to say with certainty whether or not any given use of copyrighted material is fair use. (In fairness, open licensing also has its share of ambiguity, such as the precise delineation of when use of licensed work is non-commercial and when it is not.)

This uncertainty dovetails what is perhaps the most compelling reason that educators are wary of fair use - that fair use is not a protection from copyright violation lawsuits, but merely an affirmative defense for those who have been subjected to them. Litigation has long since supplanted baseball as America’s national pastime, and there is little to prevent large corporate copyright holders from filing suit against those making fair use of their materials in the hope that an unmeritorious lawsuit is sufficient to dissuade the fair user’s activities.

The result of this situation is that educators often don’t make fair use of copyrighted materials, choosing instead the easier, safer route of rights clearance when wishing to use such works. Not only is this a waste of educators’ time and money, however, but what is considered fair use by courts is determined in part by community standards, and as the community continues to select rights clearance whenever there’s a gray area, those gray areas become territory that is harder and harder for fair use to recover.