Fair Use for Education: Taking Best Practices to the Next Level http://cyber.law.harvard.edu/events/luncheon/2012/10/elkin-koren *Niva Elkin-Koren, University of Haifa* Today, 6.00 pm Webcast live: http://cyber.law.harvard.edu/interactive/webcast http://nexa.polito.it/berkman-webcast-live Over the past two decades copyright law has become a major impediment to learning and teaching processes. The use of copyrighted materials for educational purposes is, indeed, at the core of fair use. Yet, the high level of uncertainty regarding the particular scope of permissible uses prevents universities and colleges from exercising fair use on behalf of their students. Codes of Best Practices aim at reducing this chilling effect by offering some guidance on the implementation of fair use in particular contexts. The challenge in drafting such guidelines is to provide a safe harbor for educational use, and at the same time make sure that minimal standards of fair use do not become a ceiling. Drafting a code of best practices is a type of social activism which could inform users of their rights, facilitate communities of users and reshape copyright discourse. The legal status of such codes, however, is less clear: What are the legal consequences of complying with such guidelines? Should courts defer to such norms in its fair use analysis? And if so, under what circumstances? These questions have become especially important, in the legal aftermath of the recent GSU fair use decision on e-reserves (Cambridge University Press v. Becker (N.D. Ga. 2012), May 2012 <http://www.nacua.org/documents/CambridgeUPress_v_Becker_051112.pdf>; August 2012 <http://blogs.library.duke.edu/scholcomm/files/2012/08/Order-for-relief-GSU.p...>) and the ruling of the Canadian Supreme Court on fair dealing for educational purposes. <http://scc.lexum.org/en/2012/2012scc37/2012scc37.html> In this talk I'll share some insights based on the building of a coalition of higher education institutions in Israel and drafting a code of fair use best practices. Brainstorming on the legal status of such codes may help us take fair use best practices to the next level. Links For some background on the process of drafting the fair use code of best practices for Israeli Universities see: Amira Dotan, Niva Elkin-Koren, Orit Fischman-Afori & Ronit Haramati-Alpern, Fair Use Best Practices for Higher Education Institutions: The Israeli Experience, 57 J. COPYRIGHT SOC'Y U.S.A. 447 (2010). <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1648408> Here is a link to the English version of the Fair Use Code of Best Practices for Universities <http://weblaw.haifa.ac.il/en/AcademyInCommunity/ClinicList/tech/Pages/opened...> at the Haifa Clinic of Law and Technology. About Niva Elkin-Koren Niva Elkin-Koren is the former dean of the University of Haifa Faculty of Law <http://weblaw.haifa.ac.il/en/pages/home.aspx> and the founding director of the Haifa Center for Law & Technology <http://weblaw.haifa.ac.il/en/Research/ResearchCenters/techlaw/Pages/aboutUs....> (HCLT). Her research focuses on the legal institutions that facilitate private and public control over the production and dissemination of information. She has written and spoken extensively about the privatization of information policy, private ordering, copyright law and democratic theory, the effects of cyberspace on the economic analysis of law, information intermediaries and legal strategies for enhancing the public domain. She is the co-founder of the Alliance of Israeli Institutions of Higher Education for Promoting Access to Scientific Materials. http://weblaw.haifa.ac.il/en/Faculty/ElkinKoren/Pages/default.aspx