Lewis Hyde: Throwing Down Encroachments

Lewis Hyde is a fellow at the Berkman Center, and is a professor of creative writing at Kenyon College. He’s probably best known for his work in cultural criticism, including an influential book, The Gift, which celebrates its 25th anniversary this year. He’s currently working on a book about the cultural commons and its historical roots.

At Berkman today, he introduces the idea of a program to defend educational fair use. Such a project would document the norms of academic fair use, and would focus on helping academics claim certain rights of fair use. Hyde points out that Berkman focuses heavily on studying content controls and on providing education bout democratic processes – both subjects bear on the subject of academic fair use.

To remind us of the history of commons, Hyde shows us an engraving of Richmond Park in London, the largest urban park in the world. Charles the First enclosed Richmond Park to make a deer park, and upset commoners in the process. They lost certain use rights – to traverse the park, to take gravel, to take water, to cut shrubs. An English court determined that Charles was in the wrong, and that commoners had the right “to throw down encroachements” – “If the Lord doth inclose any part and leave not sufficient commons, the commoners may break down the whole inclosure.” The engraving shows a vicar leading a group of commoners to break down the walls around Richmond Park put up under orders of the king.

Hyde believes that similar encroachments have happened in the copyright realm. He points out that copyright, in a US context, used to be short and carefully limited. “Now, statistically, it is unlimited,” he says, making the point that copyright keeps being extended to protect certain works. In the 19th century, copyright was much less restrictive – copyright protected against literal transcriptions. But a translation of a work into another language would not violate copyright. Nor would the abridgement of a multi-volume work into a single volume.

That is, until 1841, when a case arose in Massachusetts around abridgement – in Folsom versus Marsh, an author of an 11-volume collection of George Washington’s works sued the author of a two-volume collection. The smaller collection contained substantial amounts of the larger work – 30% of the volume came from the larger work. Judge Joseph Story wrote for the court, stating that fair abridgement is not a violation of copyright, but asks what constitutes fair abridgement. “We must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used and the degree in which the use may prejudice the sale, diminish the profits or supersede the objects of the original work.”

Story’s guidelines served lawyers and judges until 1976, when a revised copyright law substantially tightened fair use exceptions. Hyde quotes from the preamble of Title 17, Chapter 1 section 107 of US code, “Limitations on exclusive rights: Fair Use”:

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

That seems like really good news for educators – there’s an explicit mention of the academic use of texts, and specific protections for criticism, scholarship, research and teaching. Unfortunately, the text that follows – the four factors – are significantly more explicit:

“n determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”

Hyde points out that these clauses are quite abstract – that’s intentional, as the authors of the code are cognisant of the danger of being overly restrictive. Hyde points out that it’s surprisingly hard to use these tests as guidelines. Section three seems to suggest that you need to use a small section of text… but a court ruling regarding the Betamax allows consumers to record entire TV programs, and it’s allowable to copy a chapter of a book for use in your class.

Two cases have been litigated around academic course packets – one involved Kinkos and the other involved Michigan Document Services. In both cases, course packs were found to be infringing. But Hyde points out that both cases involved commercial copy shops. He offers a hypothetical: a communications professor copies magazine ads and adds commentary to teach students about advertising in a communication class. The pack is produced by a University copy show and is sold at cost. Is this legal? Hyde points out that there’s not clear caselaw to settle the matter.

To help professors figure out these matters, publishers have created guidelines, instructing academics how to stay out of trouble. These guidelines are quite restrictive, suggesting that professors shouldn’t copy more than an article from a periodical or a chapter from a book. It includes language about brevity – “a complete poem of less than 250 words, or less than 10% of the total work…” Hyde argues that “the very clarity of these guidelines obscures” the actual law. This is intentional – users were excluded from the final formulation of these guidelines – academics objected angrily to these guidelines, but they generally circulate without these objections.

These guidelines don’t actually have much standing in the law. Unfortunately, they’re often enforced pretty strictly within a university context. When threatened by a publisher with litigtion, NYU agreed to adopt these fair use guidelines as the maximum of what professors should do, rather than the minimum they probably should serve as. NYU has helped disseminate these guidelines, and Hyde argues that 4 of 5 universities nationwide basically use the NYU guidelines.

It’s possible to fight back against overly restrictive guidelines. Hyde points to a project by the American Univesity Center for Social Media, which worked with documentary filmmakers to advise the community on fair use. The project met with dozens of documentary filmmakers, asked them what copyright problems they had and helped them articulate their own statement of norms. The pamphlet documents the norms of the documentary community, and tries to resolve those norms with copyright law. It’s created a resource that’s proven very helpful for filmmakers – a documentary caled “Wanderlust” saved $400,000 by not getting explicit permissions for footage it used, relying instead on fair use. The project has also helped films that might not have been released overcome barriers to release, including “This Film is Not Yet Rated”. And companies that provide “errors and omissions” insurance to filmmakers are beginning to incorporate these guidelines.

So why don’t professors do something similar? Hyde points out that he mostly teaches 19th century literature, because he saves a month of preparation in not having to clear his texts. He believes the approach is not to try to teach the law to professors, but having them focus on “what’s fair and reasonable.” In this sense, filmmakers are a good community to start with, as they’re both users of fair use and copyright holders – they can see both sides of the situation.

Hyde ends with some concrete questions about starting a movement:
Where would you start?
Would you need a defense fund?
Who would fund it?
and, more or less, Who’s in?

The discussion around the table at Berkman focuses mostly on the complexity of implementing such a plan. John Willbanks of Science Commons points out that the practice in academic science can vary widely between fields – biologists share very well, and were able to create a database of genetic information by compelling people who publish to add their sequences to a database; other scientific fields aren’t nearly as good at playing nice together. Oliver Goodenough offers the idea of a compulsory license – pay a penny per copy into a fund that compensates copyright holders. Hyde dismisses this as an abandonment of fair use, and Terry Fisher, who’s studied the issue closely, thinks it can’t happen. Fisher advises avoiding university counsel in these battles, and focusing on defending the principle that education is different from other uses of copyrighted materials and should have a privleged status under the law.