Tools for college teaching aid in clearing copyright but abandon defense of fair use

An opinion piece today in Inside Higher Ed by Cornell professor Tarleton Gillespie has some smart things to say about academic online courseware vendors (a market becoming more and more concentrated), tools to enable micropayments for intellectual property royalties in the university context, and the erosion of any sort of institutional or professional defense of "fair use" principles for nonprofit social goals (such as education). The genesis of his column was the press release that "Last week, the Copyright Clearance Center announced that it would integrate a 'Copyright Permissions Building Block' function directly into Blackboard’s course management tools. The service automates the process of clearing copyright for course materials by incorporating it directly into the Blackboard tool kit; instructors post materials into their course space, and then tell the application to send information about those materials to CCC for clearance." Gillespie goes on to explain the ramifications of this new technological environment:

Some have argued that fair use is a practical solution for the complex process of clearing permission. If I had to clear permission every single time I quoted someone else’s research or Xeroxed a newspaper article for my students — figuring out who owns the copyright and how to contact them, then gaining permission and (undoubtedly) negotiating a fee — I might be discouraged from doing so simply because it’s difficult and time-consuming. In the absence of an easy way to clear copyright, we have fair use as a way to “let it slide” when the economic impact is minimal and the social value is great.

Others argue that fair use is an affirmative protection designed to ensure that copyright owners don’t exploit their legal power to squelch the reuse of their work, especially when it might be critical of their ideas. If I want to include a quote in my classroom slides in order to demonstrate how derivative, how racist, or maybe just how incompetent the writer is, and copyright law compelled me to ask the writer’s permission to do it, he could simply say no, limiting my ability to powerfully critique the work. Since copyright veers dangerously close to a regulation of speech, fair use is a kind of First Amendment safety valve, such that speakers aren’t restricted by those they criticize by way of copyright.

This distinction was largely theoretical until organizations like CCC came along. With the help of new database technologies and the Internet, the CCC has made it much easier for people to clear copyright, solving some of the difficulty of locating owners and negotiating a fair price by doing it for us. The automatic mechanism being built into Blackboard goes one step further, making the process smooth, user-friendly, and automatic. So, if fair use is merely a way to account for how difficult clearing copyright can be, then the protection is growing less and less necessary. Fair use can finally be replaced by what Tom Bell called “fared use” — clear everything easily for a reasonable price.

If, on the other hand, fair use is a protection of free speech and academic freedom that deliberately allow certain uses without permission, then the CCC/Blackboard plan raises a significant problem.

Another set of questions emerges from a different direction, if in its zeal to lessen the risk of having to fight legal battles (or even answer legal questions) over fair use, universities compel faculty and staff to use particular courseware systems (or any other tools involving automatic rights-clearance modules -- web design tools next?) from particular vendors for their teaching and/or research. This restricts the pedagogical freedom of instructors but serves to homogenize and standardize course offerings into models which can more easily be sold to wider markets of students willing and able to pay higher prices for more technologically-mediated educational products. In short, the "politics" of courseware artifacts and systems that Gillespie points us to may have far-reaching effects.