Fair Use and Fairness on Campus

Abstract

Copyright protection was meant to promote learning; yet copyright law too often thwarts this very purpose. Fair use is the primary means to restore the balance between the copyright regime’s enablement of proprietary control and the public good of access. It is a right that must be exercised if it is not to be lost. This article demonstrates why fair use is so critical to higher education, and seeks to clarify legal ambiguities of the law of fair use in order to better align this doctrine with critical educational goals. To illustrate the importance of the issue, we present data demonstrating the lack of equality in campus access to and use of information. For educational institutions with limited resources, fair use is of crucial importance, enabling faculty and students to access reasonable amounts of unlicensed content for scholarly and educational purposes. For individual scholars with limited access to copyright counsel or institutional subsidies for permissions and fees, fair use is also of crucial importance, enabling dissemination and publication of research. Unequal resources makes the lack of clarity and reluctance to use and defend fair use within the academy especially problematic. Fair use muscles may atrophy and flex, but the latter mode of action is far more empowering to the academic mission and far better aligned with the Founders’ understanding that copyright is intrinsically entwined with public access.