Copyright used to be an esoteric branch of intellectual property law
Traditionally, copyright law was the domain of a very limited group of industries, which was just as well because legal scholars, including at least one Supreme Court Justice, have admitted that fair use was one of the most difficult areas of the law to understand. But then most people really didn't need to understand it since it affected so few.
Technological advances in the late 20th century began to change the picture, however, just as the invention of the printing press dramatically changed the picture many centuries before. The photocopy machine in particular seemed to upset gentlemen's agreements between publishers and consumers of printed works about the scope of fair use. Amendments to copyright law in the mid-1970s ostensibly addressed these changes, but then everything seemed to fall apart again in the 1990s.
The electronic environment has changed everything
Suddenly, ordinary people can copy others' works with incredible ease, become publishers, and use others' works as the basis for new works, incorporating things here and there. These potential creators and publishers work for or attend our universities so we and they need to understand copyright law. But, if copyright law was hard to understand in the print environment, it now borders on inscrutable because we must identify copyright issues, apply 200 year old law to cutting edge technologies and create guidelines that real people will follow. No small order.
The situation is very nearly critical. To some it hardly matters which way it goes, just so long as it goes. But it should matter to the university community for we have much to lose if our interests aren't considered in the resolution of the problems presented by new technologies.
Eventually, these problems will recede into the background once again, because intellectual property and information are becoming much too important to leave in limbo. They are staples of industry, and industry needs more certainty to do business in the electronic environment than academia has been willing to tolerate. Between now and then, however, there is much work to be done to deal with the ambiguities as business models collapse and legal principles crumble.
Copyright to-do list
It is important to work from a comprehensive copyright management policy, one that not only addresses use of others' works involving licensing, fair use and performance rights, but also addresses questions of ownership and copyright management so that we take care to protect and exploit that which we help to create. Failure to take action can result in catastrophic liability. A thoughtful policy that is widely disseminated will go a long way towards establishing the good faith requisite to the most effective defenses available to universities under copyright law.
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