Boyle on the inefficiencies of freedom

James Boyle has been making a lot of sense, as usual, on the subject of copyright over at the FT.

"Sometimes, freedom can just come to seem inefficient. Old-fashioned. Something that can be subcontracted away. That is the time to worry. Or so it seemed to me when I read about a new license that the Copyright Clearance Center is offering American academic institutions. The centre is a non-profit organisation. Its worthy purpose is to act as a central clearance center for permissions requests. If you are a teacher who wants to assemble a course-pack of readings for your students, the centre will clear the permissions from the copyright holders and collect licensing fees for them, allowing you to do your job without hiring a law firm for each batch of homework. Some of you may be surprised that such a process is even necessary. You may remember that the American copyright act explicitly declares the making of “multiple copies for educational use” to be a “fair use” – a privileged freedom statutorily removed from the monopoly Congress has granted the copyright holder. If no permission is required, why is such a centre even necessary?...

It is bad for the goals of copyright – promoting expression, culture and the dissemination of ideas – if every use of copyrighted works is controlled. Parody, satire, criticism – all of these depend crucially on fair use. So does education and scholarship even when, perhaps especially when, the person whose works you are copying does not want you to do so. The gaps in copyright – areas of freedom the statute explicitly outlines – are as important as the rights given to the author. In a world where we “solve” uncertainty about the extent of fair use by blanket licenses, the actual area of that freedom will atrophy. This makes fair use sound like a muscle – use it or lose it? But that is the reality...

Teachers and students may come to understand their freedom to make educational copies as granted by license, not law. That may not be of much concern for wealthy colleges that find it easier to just pay a flat fee rather than educate their students and teachers about fair use. But it is a great concern for poorer institutions and for the rest of us. What about an individual teacher who needs to reproduce copyrighted works in order to teach her students about a controversial and litigious religious sect or the internal operations of a company that makes voting machines – and finds herself sued for her pains? Or teachers of art, music or film who need material not covered by the license?"