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Presumption of Noninfringement: Amending the Law on Educational Fair Use

  • Author(s): Gurman, Diane
  • et al.
Abstract

The current state of the fair use doctrine in the United States has been variously described as confusing, unsettled, and troublesome. The combination of a vague statute, a nationwide patchwork of restrictive and extra-legal classroom guidelines, and split court decisions with limited precedential value has left educators with no way to know, absent litigation, whether a given use of copyrighted materials is a fair use. While alternate solutions have been suggested to remedy this situation—including advice to courts on interpreting the statutory factors, recommended “fair use” language for inclusion in electronic resource licenses, and assertions that better guidelines or best practices are needed—this paper proposes that true fairness, clarity, and predictability can only be achieved through an amendment to the law providing “bright-line” standards for educational fair use.

The proposed amendment would declare that a presumption of noninfringement arises where the copying is done by a nonprofit educational institution, and the amount copied is less than or equal to one-third of any book, monograph, journal, magazine, or other text-based resource. “Copies” would be defined to include photocopies, e-reserves accessible only by students in the class for which the reading material was assigned, links to electronic resources via password-protected websites, and any like technologies. Such a law would fulfill the Constitutional purpose of promoting the progress of learning, as well as furthering a national policy of putting education first over the profit of publishers. The law would adhere to the benefit of greater academic freedom for instructors and help level the educational playing field for students.

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