Fair Use Best Practices for Higher Education Institutions: The Israeli Experience

Abstract

The fair use doctrine may no longer facilitate the ultimate goal of copyright law, which is to promote production and dissemination of arts and sciences. The high degree of uncertainty stemming from the doctrine is creating a chilling effect and causing users to avoid exploiting the work in ways which the law seeks to encourage under fair use. To address this uncertainty and its chilling effect on educational use, we drafted a Code of Fair Use Best Practices for the use of copyright materials in Higher Education Institutions (hereinafter – HEI) in Israel. We formed a coalition of all the higher education institutions in Israel and negotiated a shared understanding of fair use among the partnering institutions.

This paper provides a snapshot of the process of building the coalition and drafting the Code of Fair Use Best Practices. The initiative was inspired by the visionary initiatives of Patricia Aufderheide and Peter Jaszi, who worked with various communities in the U.S. to devise particular codes of Fair Use Best Practices. We also carefully examined the lessons from the failure of past American projects, such as the CONFU. We thus had ample source material for a comparative analysis of copyright law, fair use, and the different strategies of legal activism for social change. We begin by describing our vision for the educational use of copyrighted materials; our view of the purpose of copyright and fair use doctrine; and our view of the interaction between law and social norms. In Part II, we analyze the legal regime that pertains to educational use of copyrighted materials in Israel. Part III describes the process of consensus building among the different stakeholders. In Part IV, we present the major principles of the Code and reflect on their implications for the development of Fair Use doctrine. The ongoing debate regarding the appropriate mechanism for defining permissible uses is often phrased as a choice between rules and standards. While specific exemptions would provide a high level of certainty, they may prove to be too narrow and rigid and would not facilitate adaption to changes in the economic, social and technological environments. Standard would provide flexibility but too little certainty, as courts would have sole discretion in holding, retroactively, whether a use was fair. The emerging communities that deliberate on fair use in a contextual manner offer a third way. Fair use, like ethical dilemmas, involves deliberation. If we develop social institutions to facilitate such deliberation, we may bridge a gap between legal standards and social norms, and may enrich the fair use analysis with the contextual meaning it deserves. A process of consensus building fits well with this insight, since consensus building reflects an attempt to create a community with shared language that will be able to develop an ethical praxis, step by step.

Keywords: Fair Use, Best Practices, Copyright, Education, Educational Use, Israel, Copyright Limitations, Clinics, Social Norms, Consensus Building, Social Change

JEL Classification: I2, K33, K1, K2