Have you ever overheard this conversation, or something similar, in the departmental copy room? One teacher says, “How many pages of a book can I copy and still call it fair use? Another teacher replies, “I think it’s ten percent (or ten pages).” I overhear these conversations all the time. As a recovering corporate intellectual property attorney I am perhaps especially attuned to them. One always correct potential answer to the question is, “Well, that depends.”

Recent judicial attempts to establish some notwithstanding, bright lines just don’t exist in the legal terrain of fair use (as it’s called in the U.S.) or fair dealing (as it’s called in many other jurisdictions). Copyright law does have some very clear rules. For example, everything first published in the U.S. before January 1, 1923 is in the public domain. Or, since 1976 in the US, copyright has attached automatically to works the moment they are “fixed,” regardless of the author’s intent or preference.

The slippery semiotics of the word “fair,” however, render fair use/dealing a murky and changeable concept. What is “fair” in one set of circumstances will not be “fair” in another. In the copy room hypothetical, perhaps a better answer than “Well, that depends” is “You never can tell.” Or, “That’s the wrong question to ask.”

When I was a practicing attorney, I thought answering the question, “Is this fair use?,” with the Golden Rule, “Do unto others as you would have them do unto you,” was a pretty good strategy. Because context matters in the fair use/dealing analysis, many professionals can do a quick fairness check by asking how they might respond as a copyright owner to whatever use they might be contemplating.

Teachers are different. As we have argued before, critical pedagogy works through sharing and collaboration. We give our syllabi, lesson plans, course ideas away for free to anyone willing to reuse, recycle, or remix them. Further, as Ty Herrington has argued, we often speak for the sake of speaking, because we have something that should or must be said, not so we will be compensated for doing so. We may not like how our work is reused but more often than not, we accept occasional “misuses” as a small price to pay for a platform and an audience. As pedagogues, our fairness meters might be miscalibrated; we may be particularly ill-equipped to answer the question, “Is this fair use?”

So rather than a difficult legal question, “Is this fair use?,” why don’t we ask ourselves a question we are particularly well-equipped to answer, such as “What are the pedagogically sound options for making this text available to my students?” In arguing we should reframe the issue this way, I am guided by James Porter’s approach in Rhetorical Ethics and Internetworked Writing. The law is difficult and unwieldy and hard to know. Instead of getting bogged down in it, let’s deal instead with the ethical — and yes, pedagogical — concerns in which the fair use/dealing exception for copying related to “educational purposes” is grounded.

Those concerns include cost and accessibility. In our digital age, scanning and uploading a text — usually because it is expensive, and we only need a chapter or two from a monograph or anthology — may too readily become the default position. I’ve been guilty myself of not doing the most obvious thing and checking to see whether my students can access the text through interlibrary loan. Downloading something from Dropbox or a course website may be more convenient than dealing with interlibrary loan, true. Helping students understand the value libraries add to our institutions seems worth the effort, however.

If interlibrary loan isn’t an option, we should seriously consider putting together a course packet, analog or digital, the cost of which will reflect any license fees associated with material it comprises. I take an extreme copyleft view of the fair use/dealing exemption. Nonetheless, in many circumstances assuming the risk of unlicensed copying that may or may not be fair use in order to insulate our students from the costs associated with the current regulatory structure may not be the most pedagogically sound decision we could make. If copyleft reform is ever going to be more than an academic exercise, students (and their parents) may need to learn how the law permeates every system of cultural and knowledge production. Copyright law affects the price of one’s education, as well as the cost of a movie ticket.

The course packets (or licensed course reserves) approach only works, though, if a publisher is willing to license a work in pieces, for a reasonable fee. Some, though, require you to take the whole thing or none at all, while others won’t let you have as much as you need. In either case, the correct pedagogical question to ask might be, “Is there value in asking my students to purchase the whole work?” With regard to expensive, specialized academic monographs, the answer will ten times out of ten probably be, “no.” With regard to a relatively inexpensive single-author anthology of contemporary poetry from which I am teaching two or three poems, purchasing the entire text may be a financially viable and pedagogically sound choice.

Sometimes course packets or licensed e-reserves aren’t a viable option because many of us don’t know until the last moment what classes we are going to be teaching, or we teach four or more courses during every semester of the academic year. We simply don’t have the luxury of preparing a class far enough in advance to walk our selected texts through the copyright clearance process. In this situation, we should ask ourselves whether a use is truly “fair” when unlicensed copying is necessitated primarily by a system that doesn’t allow teachers adequate prep time. If you don’t have a better argument than, “I just didn’t have time to investigate getting a license,” you’re on shaky legal and ethical ground.

Now, for the sake of argument, let’s presume we’ve walked through the entire decision tree and confront a situation where making an unlicensed copy and relying on the fair use/dealing exemption is the only way we can integrate a particular text into the syllabus. Before we press “copy” or “scan,” we should ask ourselves, “Is this the best text to use for this class?” Or perhaps this is the question with which we should begin. Because we all collectively need to do more to integrate Open Source, Open Access, and Creative Commons content into all of our courses. Whenever we have a viable open access alternative, we should use it. Does your institution implement a liberal view of fair use/dealing? Wonderful. Does it also commit substantial resources to and incentivize (including through review, promotion, and tenure policies) open access publication and new-form scholarly communication that generates open educational texts and tools? If not, then your institution is not doing all it should to facilitate good pedagogy and control costs. Similarly, if we consider ourselves to be advocates for the copyleft, we should do everything we can to demonstrate the scholarly and educational value of open access work in our classes.

The recent Georgia State copyright case was not a copyleft victory. It cost an astronomical sum to litigate, and will cost even more before the appeals and settlement negotiations have concluded. Judge Orinda Evans’s 350-page opinion offers a relatively narrow reading of fair use that privileges one factor, the amount and substantiality of the portion used, over the remaining three statutory factors and all of the other non-statutory factors judges are legally permitted to consider. Relying on the fair use/dealing exemption to make our work as pedagogues possible is certainly the riskiest strategy in the short term, and may in fact be the least pedagogically effective strategy in the long run for a whole host of reasons. I am not saying we should give up on fair use/dealing, and I will be writing at Hybrid Pedagogy in the near future about how the doctrine applies in the context of student-generated work. We do need to stop looking for bright lines or applying golden rules, though, and instead consider what we gain by framing the problem of “to copy or not to copy” as a pedagogical and ethical issue, rather than as a purely legal one.

[Photo by visualpanic]