Fixing Fair Use

I've posted a preprint of my latest article, Fixing Fair Use, here and here. Here's the abstract:

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.

Open Access and Incremenatlism

Arthur Sale has posted a very nice paper called The Patchwork Mandate that is directly in line with the advice I have been giving to open access advocates and institutional repository managers on a number of campuses.

He argues that if conditions are not ripe for putting an institution-wide deposit mandate in place, advocates should target department heads or faculties and similarly-situtated officials who could mandate deposit of research papers produced within the unit into the institutional repository. He is exactly right.

He is right for the broader reason that open access advocates have to be incrementalists. Open access has occurred thus far and will continue to grow through the combination of top-down and bottom-up strategies that have been working thus far. There are still a number of skeptics who need persuading that granting access to marginal audiences is a valuable goal. It is more feasible to win some of these skeptics over in small group settings and by shifting behavioral and attidunal norms within more local settings - such as an academic department.

Of course, we continue to work hard to support top-down initiatives, such as the FRPAA, which is itself an incrementalist measure that applies to only a subset of funding institutions. But we have to be pragmatic about where the opportunities are. If you are in a university that is not in a position to adopt institution-wide open access policies, look for other opportunities. One department at a time.