The University of California at Los Angeles has decided to forbid teachers from posting videos (or, apparently, pieces of them) to their electronic teaching platforms, after an educational media association complained about the practice. It is just a crying shame that UCLA has capitulated to the association's demands, without considering the effect either on pedagogical practice in its own institution or on the wider world of higher education. (Read about it at Inside Higher Ed here.)
The original provisions of Sec. 110 of the Copyright Act, special educational exemptions, were never designed for the digital era, and the amendments to it provided under the 2003 TEACH ACT are crabbed and constrained, the product of tough negotiations between the relatively weak nonprofit entities and highly focused copyright holders. So as it stands, Sec. 110 is a poor fit for changing educational practice. Exclusive reliance on Sec. 110 can mislead librarians, professors and university counsels into an attempt to make practice conform to a rigid and unhelpful set of rules.
Far more useful is the flexible and adaptable doctrine of fair use, which is fully available to every teacher, and every college and university -in addition to and apart from Section 110. Judicial interpretation of this doctrine has coalesced dramatically in the last two decades, and has eliminated much confusion about how to interpret fair use. Two concepts are critical to make a fair use judgment: Transformativeness (using material for a different purpose than the original) and appropriateness (using enough to make the point). In many cases, videos posted to course sites by instructors will satisfy these fair use criteria easily.
In order to more easily make and defend fair use judgments, higher education doesn't need more negotiated "guidelines" - an approach that, as documented by Kenneth Crews , has never served their interests well. But another, more fruitful, approach is available. Recently several communities of practice have formulated collective interpretations of fair use, or codes of best practices in fair use. These codes have dramatically reshaped practice in fields such as documentary film and media literacy education. They are used daily by online video makers who enthusiastically embrace fair use without legal harassment.
Four codes are of particular interest to higher education: the Society for Cinema and Media Studies' two codes of best practices (one on teaching and one on research), available on SCMS's website; the Code of Best Practices in Fair Use for Media Literacy Education ; and the Code of Best Practices in Fair Use for OpenCourseWare . These codes discuss, for example, when the relevant community of practice regards it as appropriate to post others' copyrighted material online, and how to reason about the amount of material appropriate to include.
What is needed is a collective interpretation of fair use for the higher education in general community (not and never a negotiated settlement with entities that have a record of opposing higher ed's assertions of fair use!). Until that time, it will take acts of courage to resist bullying from copyright holders attempting understandably to maximize their advantage in a rapidly changing business environment. And that is another crying shame. Because no one should have to be courageous to use their rights. Professors and university general counsels should, like filmmakers , film scholars and media literacy teachers, be able to employ their fair use rights as a simple and ordinary part of their work lives.
Thanks to Prof. Peter Jaszi, Washington College of Law, American University for a close legal read of this post!