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Contrasting Approach to "fair" - US Study v. AUCC "fair dealing policy"

By Howard Knopf, Esq.

Here?s a contrast in attitudes to the concept of "fair" in the context of copyright in the academic world.

Here?s a brand new study dated December 20, 2010 from Adler, Butler, Aurderheide and Jaszi in the USA. It favours an expansive approach to what is ?fair? because the job of librarian is help faculty and students to learn and do research. The authors state:

Failure to employ fair use affirmatively and consistently impairs the accomplishment of
the academic and research libraries? mission. Interviewees described downsizing,
postponing, and shelving courses, research projects, digitization initiatives, and exhibits
due to costs associated with seeking permission or making what seem to be tedious
case-by-case determinations of fair use. Scholars were denied access to materials, or put
to considerable hardship, because of constraints interviewees imposed on the use of
copyrighted materials. Some interviewees described providing disabled students with
lower levels of access than their peers for fear of violating copyright. Materials with
inherent flaws (e.g., books with acidic paper, and analog tape and film that will warp
and disintegrate over time) and in near-obsolete formats are languishing because some
interviewees were not comfortable acting under fair use where other reformatting
provisions may not apply. Interviewees were typically aware that they could go further,
but felt constrained in exercising fair use in various situations.

And this is in the USA, home of ?fair use? , which is potentially far more liberating to teachers and students than ?fair dealing?.

Contrast this with the recent ?final? AUCC (Association of Universities and Colleges of Canada)  guidelines on fair use, which are so conservative, restrictive and risk averse that one could well wonder whether they originated from AC (Access Copyright ) or  AUCC.

Here?s the final revised version of AUCC?s document, and here?s the August draft. For interest, I attach a redlined version comparing the two.  Interestingly, the revised version, which I understand dates from December 7, 2010, omits the reference to the six part test from the SCC in CCH v. LSUC - which would be useful to inform and empower librarians and others in the university community.

Also, interestingly, the document still does not use the precise phrase ?research or private study?, which is the carefully drafted terminology in s. 29 that was meant to convey the notion that, while ?study? must be ?private? (whatever that means), ?research? is no so delimited.

HK

Full post as published by Excess Copyright on December 21, 2010 (boomark / email).