Kenny Crews Dispels Copyright Guideline Myths

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Kenny Crews Dispels Copyright Guideline Myths
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Kenneth Crews
Kenneth Crews

You are tuned in to copyright chat.

Copyright chat is a podcast dedicated to discussing important copyright matters. Host Sara Benson, the copyright librarian from the University of Illinois, converses with experts from across the globe to engage the public with rights issues relevant their daily lives.

Copyright chat is pleased to host Kenneth D. Crews today. Kenneth, affectionately known within the copyright community as Kenny, is an attorney author professor and international copyright consultant. For more than twenty five years his research policy making and teaching have centered on copyright issues of importance to education and research. He is the author of numerous books, articles, websites and more. Professor Crews established and directed the nation’s first university based copyright office at Indiana University where he also held a tenured law professor ship. He was later recruited to establish a similar office at Columbia University in New York City and to serve on the faculty of Columbia Law School. Professor Crews recently returned to his home city of Los Angeles and has a law practice and consultancy based in Century City with the firm of Gipson Hoffman & Pancione.

Sara: Kenny, can you tell me how you got into copyright? You’ve had a long and illustrious career and I’m just curious how that happened.

Kenny: Yeah I’m frightened when you say long career–my gosh–because it has been a surprising number of years. I’m going to tell you something about my first awareness of this copyright thing and it would have really begun as a lawyer. We had a few copyright matters come through the office and I handled those and that sparked my interest. Another thing that sparked my interest really early on was I knew I always enjoyed and wanted to write and then I discovered this copyright thing, concept, subject that related to writings and I love art and music and it related to all of that and you know and even clocking it back before my lawyer days while I was an undergraduate I picked up a book kind of a self-help book for legal issues for writers and it had a chapter about copyright and I kind of was discovering for the first time that this thing was out there. And then there’s a long story that got me interested in it from a library perspective which led to my doing a Master’s and PhD at U.C.L.A. which is where we happen to be sitting right now and earning a PhD here in the Library and Information Science analyzing copyright. And then it’s a big long story from there we don’t have enough recording time.

Sara: Well, thanks for that background. I’ve noticed that a lot of folks in copyright got into it because of their own endeavors such as, we met with a law professor today who told us that she was a documentary filmmaker. And I do appreciate you coming into it from the writing side, because I, too am a writer as well. So you have stated very publicly that we shouldn’t be too wedded to the guidelines that are provided and specifically I’m thinking of the Circular 21 guidelines that a lot librarians follow for teaching and fair use. Can you speak a little bit about where we are today in terms of the Circular 21 guidelines?

Kenny: Yeah it’s a fascinating legal story because the guidelines you’re talking about–there are several variations that have risen up over the years, but really the one that’s gotten the most attention is back at the beginning of the passage of the 1976 Copyright Act for the first time Congress was including a fair use statute. And so question was, “what is fair use” because the statute didn’t have any details in it. It had the four factors, but no details beyond that. Honestly, the reason why Congress said go develop some guidelines is because librarians, educators, and others around them were looking for some level of certainty about especially classroom use and Congress was not going to give greater certainty than the four factors, but encouraged interested parties to go negotiate your own guidelines. And out of that effort came what we know from 1976 as the classroom guidelines. Ever since I got acquainted with those guidelines many, many years ago I’ve been very critical of them both in their development–in the way they were crafted–and in the fact that they really have remarkably little to do with fair use. As I’ve sometimes somewhat cynically put it they are guidelines you may choose to follow if you choose not to follow fair use. They are not much of anything to do with fair use. But I’ve been concerned because once they’re out there once they look semi-official they’ve been picked up by universities and libraries and litigants as a measure of fair use. And that’s problematic for many different reasons.

In my dissertation I analyze university policies and identify that many universities were in fact relying on these guidelines and I’ve been harshly critical of them ever since. And then jumping forward to much more recent years what we know is the Georgia State case where Georgia State University was sued over electronic reserves and it raised the legal question what is fair use. The publisher parties, the plaintiffs, were advocating these guidelines and the defense was pushing back saying no this needs to be measured by the factors of fair use and what case law has told us those factors mean. And that argument really prevailed. The courts that have ruled in the Georgia State case have really given those guidelines a beating and it’s satisfying to me to have had a role in that in bringing that to the attention of the court. Because many of the issues that the court was facing factually and legally were issues that were straight out of the analysis from my dissertation many years before. So I was able to reach back to that dissertation, bring it up to date with other developments, and bring that as an expert witness to the attention of the court and I was pleased to see that whatever the court ruled they downplayed the significance of those guidelines. And I think it’s safe today for colleges and universities to really look to alternative understandings of fair use.

Sara: Do you think that we have come a long way since then, since you wrote your dissertation, in terms of the guidelines that Universities and libraries are following? Or do you think that there is still a significant faction that is following the letter of the Circular 21 Guidelines today?

Kenny: You can find all of the above. So if we were to take dozens of universities and colleges and look at what they’re doing we’re going to find potentially dozens of different answers. There definitely are trends because colleges, universities in their decision making in their policymaking they do look to one another. I don’t know if you’ve ever been in the room, and I’m sure you have, where a committee or group of faculty or whatever they have a task of putting together something–a report, a study, some guidance on copyright, or any other issue–one of the first things people say is, “Well, what is that other university doing?” Let’s pick it up and learn from them. So there’s a natural tendency to want to learn from your neighbor to get some ideas from your neighbor–to see what works see and what doesn’t work. So, if your task at the University at the library is to have the a policy you are assigned the task of developing policy on this issue of handouts one of your goals–I hope you have many goals addressing the law addressing teaching needs addressing all those good things–but one of your goals is to get the job done and if that becomes too much of a goal in the mix you’re going to look for some easy answers and the guidelines became a way of having an easy answer available for policy making. And especially it had the appearance of having some official stamp on it because of its introduction in a congressional report, which by the way certainly doesn’t make it law–that’s abundantly clear.

Sara: Also, after that it was adopted by the US Copyright Office which also made it look more official, but when I called the Copyright Office to ask how many times it had been revised over the years I was told almost never—since 1976.

Kenny: That’s right. Think of it this way about the copyright office: does the Copyright Office have a duty to interpret fair use? I think everybody inside that office and probably everybody who sits down to figure out the real answer is going to say no, that’s not what they do. If you go to their website you will find a lot of helpful things about fair use. They’re realizing this is where the questions are, so let’s put some more helpful material up here–and that’s really good.

I think having the copyright office as a source of information is a good thing, but they need to be careful, as I’m sure they know–I’m not lecturing them–this is no surprise, that they shouldn’t be making the interpretive decisions and the problem is–and I think it’s time that they did reflect on this– that promulgating those guidelines has the appearance of advancing a position, an interpretation of fair use. And I think it’s time for the copyright office to say let’s give this a fresh look and maybe set those aside. You know they’re part of the historical record, it’s a fact that they exist, but I think that’s just about all that they are at this stage of the development of the law.

Sara: You and I are in complete agreement there. I just published an article in Journal of Academic Librarianship telling the copyright office do away with those guidelines, and if not, to revise them significantly. But, I think you’re right this is an area where the courts are in control of the various decisions and the copyright office really isn’t meant to create law or interpret the law.

Kenny: And let me add to that, you’re probably aware there was something called CONFU, the conference on fair use, which lasted for about three years in the late 1990s from ’95 through ’97 into ’98. And it was an effort to bring together interested parties of all types potentially any point of view to negotiate some interpretive guidelines and it led to a report that included a few of what were discreetly labelled proposals for guidelines honestly that’s as far as they went. It’s kind of funny because you think back proposals for guidelines? Well, that suggests there’s another step before they become guidelines and then maybe tucked away in a paragraph somewhere in that report as an explanation of who’s supposed to take that next step, but there’s no authority to take that next step.

The real authority is you–whoever you are out there listening to this. It’s a question of what is your library’s policy on fair use for reserves for digitization for whatever your project might be? What is your institutional policy, board of trustees, parent university wherever your position may be located? What is your policy as a person? Individually, are you the kind of person that you’re going to interpret fair use broadly, fluidly? Are you the kind of person who needs some more defined standards of fair use? That’s okay. We’re all different people coming at these tasks bringing their own experience and personality to it, but we need to understand that we need to have a policy: A personal policy and an institutional policy.

Sara: That’s a good point. And I think that the reason we’re seeing such a proliferation of copyright advisory positions in libraries is because people are looking for that guidance and that informational literacy that we can bring to our campuses and through those discussions we can advise people and help them develop their own policy.

Kenny: I think that’s exactly right and I think you would agree to that that one of the key objectives when every college whenever a library sets up a copyright related position. That one of the one of the primary objectives is to educate the community. And that’s extraordinarily important, but I bet as you found out it’s tough to get people in the room to educate them so it’s a challenging position. And then, of course, when you educate them it means they’ve got questions and the questions may not come up till next week or next month or next year and that means it also is building more responsibility. This is a growing area of responsibility for each of our institutions and we need to be ready to treat it with the seriousness that it deserves.

Sara: I agree. Thank you so much for joining me today and I hope to have further conversations with you about copyright.

Kenny: Thank you very much it’s a pleasure and my best wishes to everybody out there listening and I hope to meet many of you in the future thank you.

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