Fair Use and Fairness on Campus
Deborah R. Gerhardt
University of North Carolina (UNC) at Chapel Hill - School of Law
Madelyn F. Wessel
University of Virginia
North Carolina Journal of Law and Technology, Vol. 11, Spring 2010
UNC Legal Studies Research Paper No. 1594934
Conclusion below, full paper free download here
The educational community must assert and defend fair use if it is to retain some autonomy over academic content and preserve some equity in the delivery of its mission. Access to information is a theme resonating within legal and philosophical constructs of both free speech and equal protection in a society that considers
itself just. In a world where technology makes so much content available for educational use, the copyright laws that were originally conceived to promote education are instead often routinely applied to inhibit it. Unequal access to counsel and profound disparities in the content available on campus exacerbate the problem.
Fair use is the primary means to restore that balance. Despite the myths that abound, fair use jurisprudence is a dynamic, factbased, ever changing body of law and courts are more willing than one might expect to find fair use when equity demands it. Whether the issue is classroom access to research and scholarship or the
publication of a substantive scholarly critique, we think both copyright jurisprudence and equity will often support fair use. We have seen fair use muscles atrophy and flex and can vouch for the fact that the latter is far more empowering to the academic mission and far better aligned with the Founders’ understanding that
copyright is intrinsically entwined with public access.
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