Teaching Without Infringement: A New Model for Educational Fair Use

David Simon, Chicago-Kent College of Law

Abstract

Although fair use is an intentionally vague doctrine, its application to education has been described as only one of two categories where outcomes remain “quite difficult to predict.” To combat this uncertainty, courts have looked to negotiated Educational Guidelines, which Congress included in its House of Representatives Report accompanying the Copyright Act of 1976. While their judicial hearts were in the right place, the courts deciding these cases left their legal skills at home. Their choice to use the Guidelines had two unintended and destructive consequences. First, it erroneously gave the Guidelines the appearance of law under § 107’s fair-use analysis, sometimes inadvertently characterizing them as setting maximum limits on permissible copying. Second, it forced educational institutions to rely on the Guidelines as the law, improperly crafting their own copyright policies to reflect the Guidelines’ contours. Educational institutions began using the Guidelines as maximum limits on allowable copying under their policies, constraining their instructors’ ability to teach effectively.

To remedy these problems, this Article proposes a new model for evaluating educational fair use: the administrative agency. Although previous scholars have delineated new approaches to copyright infringement and fair use, almost none deal explicitly with fair use in education. That is exactly what this Article does. Building off a previous scholar’s suggestion that Congress create an agency to administer fair use, this Article takes an additional step by creating a model that develops and enforces regulations specific to educational fair use. This new agency is likely to reduce uncertainty for educators, slenderize educators’ risk of litigation—thereby simultaneously decreasing educational expenses and increasing the amount of time and money spent on educational advancement—and substantially ameliorate, if not eliminate, the negative effects the Guidelines have had on the education. Educational institutions would then have the flexibility and the practical tools they need to teach their instructors and students about the law.