Fair Use in an Electronic Age:
A View from Scholars and Scholarly Societies
Douglas C. Bennett
Originally published in Copyright, Public Policy, and the Scholarly Community. Washington, DC: Association of Research Libraries, 1995. Copyright © 1995 by Douglas C. Bennett. The author has granted permission to reproduce and distribute copies of this work for nonprofit educational or library purposes, provided that copies are distributed at or below cost, and that the author, source, and copyright notice are included on each copy. This permission is in addition to rights of reproduction granted under Sections 107, 108, and other provisions of the U.S. Copyright Act.
The 53 learned societies which belong to the American Council of Learned Societies embrace more than 300,000 scholars, and all of these learned societies publish at least one scholarly journal. Consequently, on issues of intellectual property, ACLS and its member societies are not just "in the middle." We might better be described as "schizophrenic" in the current tension between the claims of publishers and users regarding fair use in the new electronic environments. Scholarly societies feel powerfully the needs, clairns, and rights of authors and publishers. And we feel powerfully the needs, claims, and rights of scholars, teachers, and students. The schizophrenia is made even more intense by the understanding that, at different times, these opposed perspectives can be found in the same people and in the same organizations. In using the metaphor of schizophrenia, however, I also want to convey that we believe in the possibility of "normal mental health." We believe in the possibility of finding constructive ways to harmonize these perspectives, these needs and claims, in a manner that is reasonably constructive and beneficial for all.
The debate over fair use in networked environments is dominated by two large worries, one on the part of librarians and one on the part of publishers. They are never articulated quite this boldly, but they suffuse the conversation, coloring much of what actually is said. The librarians worry that fair use will disappear altogether. They worry that all uses of copyrighted materials will be on a licensed or pay-per-view basis only. They worry that, ultimately, they will be excluded from preserving and archiving intellectual resources. And thus they worry that no one else will care and that many valuable items will be lost forever.
The publishers, on the other hand, worry that the new electronic technology will open the door to rampant unauthorized copying. They worry that thousands of copies, indistinguishable from the original, will be made instantaneously, with just a few renegade keystrokes. They worry that under the guise of fair use, copyrights will no forager be respected. Thus they worry that copyright holders will not be fairly compensated for their works.
One important setting for these discussions is the ongoing Conference on Fair Use in Library and Educational Settings, which is being sponsored by the Working Group on Intellectual Property Rights of the Clinton Administration's National Information Infrastructure Task Force. The conference is organized as an extended negotiation among established stakeholders, primarily, but not only, among publishers and librarians. The focus is on rights, on crafting guidelines which strike a proper balance between the rights of copyright holders and the rights of users of copyrighted materials. Conference participants are proceeding by extrapolation and analogy. We are working from the assumption that we can make the approaches of the past work in the future. We are hoping to find in the 1976 Copyright Act, and in the guidelines that were crafted at that time, some approaches that are still applicable in this new technology. This is a prudent approach in times of uncertainty and of rapid technological change. The current stakeholders all intend to be around for quite some time. The future is sufficiently murky that no one feels an interest in abandoning the safe ground of the past. There are also some disadvantages to this approach, however.
Approaching these questions by extrapolation and analogy keeps our heads down; it doesn't encourage us to look very far ahead. The focus on rights also makes this an approach that exacerbates division and divisiveness by accentuating our differences. The risk is that we will not make any progress on finding new, constructive solutions. But one thing we all know about the current system of fair use and intellectual property is that it must undergo dramatic change. We cannot and will not go on as we have.
I would like to shift our attention, at least for the moment, to goals and purposes rather than rights or interests. I want to focus on the wider purposes we are all trying to serve. I want to focus particularly on three contexts in which I believe there is a community of concern among us all: the nurturing of scholarly or disciplinary communities, the provision of higher education to large numbers of Americans, and support for a broad intellectual climate characterized by exploration, inquiry, and creativity. Appreciating some special features of these contexts may lead us to lift our heads up a little and find more constructive approaches.
Over the past century and more; we have built extraordinarily capable scholarly communities in a wide array of fields and disciplines. These are communities of special expertise and understanding. These scholarly or disciplinary communities have both informally and formally organized aspects. They involve, for example, close relationships of colleagueship and circles of interest in particular specialized topics. But they also involve such formal modes of organization as college and university departments, journals, and the learned societies which belong to ACLS.
There is a great deal to admire about these scholarly communities. They embody deep reserves of insight and expertise, they have developed powerful methods for advancing and sharing knowledge, they facilitate sophisticated communication among scholars spread out in time as well as geography, they have developed very successful approaches to judging and affirming quality, and they are the most essential element in the continuing excellence of the finest system of higher education in the world. Of course, these communities of scholars are not perfect. They are too fragmented, sometimes they respond slowly to fresh challenges, and they do not communicate as productively as they might with those who are not scholars.
We should also recognize that these scholarly communities are fragile and delicate constructions. They will be significantly reshaped by the new electronic technology. How scholars gain access to intellectual resources, how they conduct scholarly research with one another, how they share preliminary results, and how they publish are being utterly and rapidly transformed. Scholarly communities must embrace the new technology because it provides the key to solving the most basic predicament of modern knowledge. It grows at such an accelerating rate that the old technologies of physical libraries and print on paper can no longer be adequate.
But because they are fragile, scholarly communities may also be mauled or mangled by the transformation. There is opportunity, but there is also danger in the pace and bewildering frontiers of change. Finding workable and constructive approaches to handling intellectual property are absolutely critical to the adaptation of scholarly communities to the new technology. We need routines and understandings that work for hundreds of thousands of scholars who are both creators and users of new knowledge.
The U.S. has the best system of higher education in the world. It is both the highest quality system and the one which involves the highest percentage of citizens. It has become not only a major sector of the economy, but also a significant source of foreign exchange for the United States in educating large numbers of students from abroad.
For higher education there is also change and opportunity in electronic communication and publishing. The new electronic technology both supports and requires a population at ease in the world of networked information and cultural resources. In computers and networks there are rich possibilities for improving learning which we have only begun to explore. We have extraordinary new means for teachers and students to work together actively and collaboratively, and extraordinary new means for bringing text, sound, and image vividly into the classroom. Via distance learning there is tremendous promise for still improved access to education, and for education to be better integrated with other life activities.
At the same time, we need to appreciate that the financing of higher education is a wreck in progress. Tuition charges have been rising at an alarming rate. Both federal and state governments have been withdrawing financial support. Costs have been pushed onto individual colleges and universities, and they, in turn, have passed the burden onto parents and students. Colleges and universities will be strapped to find the resources to acquire the available new technology and the new information resources.
A further irony is that the best strategies for making use of computers and networks are collaborative and national (even global), not individual and local. More than ever before, we need to work out collaborative strategies for institutions and individuals to share knowledge with one another. Virtual libraries and distributed information networks hold the best promise for the future. But the financial predicament could push us away from the technically best solutions.
Devising workable strategies for handling intellectual property will be critical for allowing higher education to take full advantage of the potential of the new technology. Colleges and universities expect to pay for intellectual property, but they need charges which are affordable and easy to administer, and which permit collaborative strategies and use of wide area networks.
We need an intellectual environment not just tolerant, but nurturing of creativity, exploration, analysis, criticism, and synthesis. This is not a separate context but a particularly vital and vulnerable aspect of all intellectual and creative contexts. The freest possible exchange of ideas has been and will continue to be essential to scholarship, the arts, entrepreneurship, and religious freedom. There is no question whether the new technology can support this. The development of the Internet, for example, has been accompanied by a remarkable flowering of curiosity and creative endeavor.
We need to recognize, however, that while the new technology inclines towards free inquiry and expression, it does not guarantee either. Broadly speaking, I believe there are two dangers. One is a rising tide of intolerance, active antagonism to art and intellect, and willful ignorance. We have had episodes of anti-intellectualism in the past, and we appear to be currently in the midst of another. The rush to censor the Internet is just orte small manifestation of its return. It will take much positive effort to reverse this trend.
The other danger would be in relying too heavily on profitmaking activities and institutions in shaping the electronic future. The new technologies open many new doors to commercial exploitation of intellectual and creative works. We are in the midst of something akin to a land rush to stake claims to content that may have commercial value in the future. Publishers are finding new value in backlists, media conglomerates in old film libraries, and entrepreneurs in visual images of all kinds. As with all land rushes, however, there is risk that some things of value may be trampled along the way.
The marketplace and entrepreneurial activity certainly will have central places in the development of a national information infrastructure. But a sole focus on profitable undertakings is unlikely to serve well scholarly communities, higher education, or democracy. This is why the concept of fair use is well worth adapting to the new circumstances. Authors and publishers should be compensated for their work in most cases. No doubt we can work out technical and financial strategies which gain permission and pay royalties for most uses most of the time. But it would be chilling to have to ask permission for all uses of copyrighted materials. For a healthy climate of free inquiry, it will continue to be important not to have to ask permission to quote and criticize or to parody a published work.
Let me simply name a broader and more formidable challenge. We need an environment in which all can be aware of what others can know. This does not mean everyone should have free access to everything that is published. Rather, it means that everyone should be able to be aware of what is available. For genuinely free inquiry we need a common intellectual realm: to publish is to make public. We achieved this in the print world via a complex array of institutions and practices: public education supporting widespread literacy, libraries, bookstores, daily newspapers, and more. What institutions and practices will we need to achieve this in a digital, networked environment? This is a problem that will take our most constructive joint efforts.
These three contexts I have been sketching--scholarly communities, higher education, and free inquiry--are not the only ones which we might consider. They are not the only ones which will matter in developing a national information infrastructure. They are certainly not the ones where the most money will be gained or lost. And there is no easy separation of these contexts from (for example) entertainment or the mass media. I have focused on these three because I believe they will require unusual and deliberate care in handling questions of intellectual property. The danger is that their special characteristics will be overwhelmed by developments in other realms. What will serve entertainment well is unlikely to serve scholarly communities, higher education, or free inquiry nearly as well.
Publishers, librarians, the educated public all rely on these specialized contexts. In working out approaches to fair use and copyright in a networked age, we should take care not to press our positions--our rights--so narrowly or aggressively that we harm these realms. A thoughtful balance of rights and exemptions is the fundamental architecture of copyright law and practice. All three of these contexts require arrangements in which both producers of intellectual property and users of copyrighted materials are well served. Successful arrangements will bring rewards (financial and otherwise) to both producers and users. We all share an interest in negotiating agreemenb which support vigorous scholarly communities, a high quality, broadly accessible system of higher education, and the freest possible exploration of ideas and creative possibilities.
Douglas C. Bennett is Vice President of the American Council of Learned Societies