Teaching Without Infringement: A New Model for Educational Fair Use

109 Pages Posted: 2 Dec 2009 Last revised: 23 Apr 2010

See all articles by David A. Simon

David A. Simon

University of Kansas School of Law; Hanken School of Economics; University of Cambridge, Faculty of Law ; Harvard Law School

Date Written: December 1, 2009

Abstract

Although fair use is an intentionally vague doctrine, its application to education has been described as only one of two categories where outcomes remain “quite difficult to predict.” To combat this uncertainty, courts have looked to negotiated educational guidelines, which Congress included in its House of Representatives Report accompanying the Copyright Act of 1976. Courts’ use of the guidelines has had two unintended and destructive consequences. First, it erroneously gave the guidelines the appearance of law under § 107’s fair use analysis, sometimes inadvertently characterizing them as setting maximum limits on permissible copying. Second, it forced educational institutions to rely on the guidelines as the law, improperly crafting their own copyright policies to reflect the guidelines’ contours. Educational institutions began using the guidelines as maximum limits on allowable copying under their policies, constraining their instructors’ ability to teach effectively.

To remedy these problems, this Article proposes a new model for evaluating educational fair use: the administrative agency. Although previous scholars have delineated new approaches to copyright infringement and fair use, few deal explicitly with fair use in education. That is exactly what this Article does. Building off of a previous scholar’s suggestion that Congress create an agency to administer fair use, this Article takes an additional step by creating a model that develops and enforces regulations specific to educational fair use. This new agency is likely to reduce uncertainty for educators, slenderize educators’ risk of litigation - thereby simultaneously decreasing educational expenses and increasing the amount of time and money spent on educational advancement - and substantially ameliorate, if not eliminate, the guidelines’ negative effects on education.

Keywords: fair use, education, administrative law, educational guidelines

Suggested Citation

Simon, David A., Teaching Without Infringement: A New Model for Educational Fair Use (December 1, 2009). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 20, No. 2, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1516392

David A. Simon (Contact Author)

University of Kansas School of Law ( email )

1535 W 15th Street
Room 504
Lawrence, KS 66045
United States

Hanken School of Economics ( email )

PB 287
Helsinki, Vaasa 65101
Finland

University of Cambridge, Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Harvard Law School ( email )

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