The Chronicle of Higher Education actually has a good column on fair use entitled Digital Dissertation Dustup that looks at a dissertation which heavily uses traditionally copyrighted images and film clips as well as hypertext. I've cross-posted a longer entry on this at my blog, Techsophist. The situation in short was that Virginia Kuhn of University of Wisconsin at Milwaukee's dissertation was in multimedia form, with generous use of clips and snips of different media, sometimes enbedded in other clips:
Although Ms. Kuhn lists detailed citations for all multimedia works in her thesis, she refused to ask permission to include them, because she insists that she should be able to cite them in the same way that print sources have long been cited. She says: "If you ask for permission, you're screwed because you imply that you legally need it."
Yes. Unfortunately there were some at the university that held up her dissertation's approval fearing lawsuits from copyright holders. Later in the column (too much later) legal experts on copyright point out that what she did was clearly fair use and if challenged she would easily win. I concur with Kuhn's stance and want to add that if we don't avail ourselves of the fair use rights we have in academia, fair use will no longer be common use and research of any kind will become even more difficult and expensive than it already is.
asking for permission or not
To use the words of Kuhn, academics are screwed either way when it comes to fair use of media other than alphanumeric text. First of all, most educators don't even know what is and what is not fair use. Even if someone does know the four factors of the fair use test, the only way to know for sure if the use meets the four factors is by knowing legal precedent or having a court rule on it. Meanwhile, who's to say that our institutions are going to back us in copyright infringement suits? Who wants to be part of a copyright infringement suit even if you are in the right? Finally, it doesn't even matter if it is fair use. Copyright holders, particularly the content industries, will demand permission fees or sue anyway.
Read Lessig's story about documentary maker Jon Else and his experience with Fox over the Simpson's. As writing teachers, we may know about alphanumeric text because there are some pretty clear guidelines over how much text use is within fair use limits. But with other media--photos, audio, video, other graphics--"don't ask" just doesn't make much sense to me. It's sorta like sticking our heads in the sand.
The better alterntative is to start advocating CC licensed works and expanding the public domain so that we have more resources which are not subject to the fair use factors.
fair use
I knew you'd have something pertinent to say Charlie, and that is one reason I posted the link, so that you and others who care deeply about this issue could weigh in. You know I support CC and agree that it is clearly the better alternative, but I also believe that unused rights typically get eroded. Educators have fair use rights and shouldn't be apologetic (or back down in advance) about using them.
full spectrum of available content
I agree that stronger advocacy of the Creative Commons license would do wonders for research and education, but don't you think that if you limit your approach to the problem by only advocating CC licensed works that your research would present an incomplete picture of your subject of inquiry? Campaigning for greater institutional support for educators' rights to Fair Use and advocating the development of CC works don't have to be mutually exclusive, do they?
no doubt
I agree that rights tend to get eroded, although I suspect this has already happened when it comes to multimedia content. The entertainment industries are way ahead of us. In Freedom of Expression®, Kembrew McLeod gives a very shocking description of how this has already happened with the music industry. Even though the purpose is different when it comes to education (a factor), the existing practices of copyright permission will dominate. Lessig pointed out at CCCC in San Fran that if one makes a documentary which includes any copyrighted content and doesn't get clearance, one should expect to be prepared to mortgage (or even lose) the house.
So my problem with the Don't Ask mantra is that it oversimplifies what is a very complex problem and is not a realistic solution. 99% of educators simply don't know what their rights are and do not know what the consequences are of exercising those rights.
mutually exclusive
I agree, once a balance is achieved. Right now, CC licensing and related public commons issues get much less attention than fair use (which doesn't get much, but at least people know something about it). For instance, isn't it odd that the field of composition and rhetoric and the rest of the humanities has not engaged with and begun supporting the open access movement? (are you in R/C Scott?)
Besides. Once digital rights management (DRM) is in place, fair use doesn't matter for digital content. Content creators and publishers do not have to facilitate fair use with DRM. Nor can someone violate the DMCA because of fair use rights. Promoting CC licensing is important because it promotes sharing over control and could cause the public to resist content providers who lock up their content too tightly (sort of a market perspective).
rights
No, I'm not in R/C, and you make a good point. I guess all I was getting at is that since Fair Use is a mechanism that is already in place for educators-- granted it's not the same as CC-- it seems that educational institutions have a responsibility to protect those rights.