Copyright's Digital Dilemma Today: Fair Use or Unfair Constraints? Part 2

Abstract: Strickland explores the parameters of fair use in copyright law as of late 2003, including the DCMA, Teach Act, and various relevant legal cases and state statutes.

Strickland gives some recent copyright rulings regarding:

  • thumbnail versus full image use;
  • grey areas of different types of linking (because of similarity to copying);
  • prohibition of TPM circumvention (except for legally-owned copies).

Both TPMs and licensing can infringe on "historically used and recognized" fair uses. So, "negotiation of license terms remains critical." The trend toward monopolies and licenses could "give an information vendor total control ... and remove most if not all rights of a user."

A particular area of concern is attempted database legislation that would undercut historical commitment to facts as being in the public domain. Shockingly, the language of potential state statutes could criminalize a wide range of internet activity, including much that has always been considered fair use.

Strickland notes the positive impact of TEACH for use of copyrighted materials - still with some limits - for a specifically-defined distance education setting and then gives a brief survey of the duration of copyright.

Strickland concludes by noting the industry vs. unrestricted advocates conflict and asserting that, long-term, industry restrictions for profit/extortion rather than customer service will not win.


Until I read Strickland's article, I had NO idea that linking could be copyright infringement!

Some of the details of legal fair use were unknown to me, but they all seem to continue the trends toward diminishing the public domain. It seems that only corporations and not individuals (either creators or poor users) benefit from this. I'm curious as to why the government isn't advocating for consumers' rights more consistently. I was quite surprised by the recent decision by Congress to maintain net neutrality - a consumer-favorable decision.

And, given the often obscure and confusing language of licenses, I'd love another paperwork reduction act that required simple language in licensing contracts: probably wishful thinking.

It all makes me feel an even stronger desire to advocate for open source software, open access journals, and now - databases, too. A different model for public domain (I like the HR 2601 bill's idea) is desperately needed to address information access inequities.

Strickland, L. S. (2003). Copyright's Digital Dilemma Today: Fair Use or Unfair Constraints? Part 2: The DMCA, the TEACH Act and Other E-Copying Considerations. Bulletin of the American Society for Information Science & Technology, 30(2), 18-23. Retrieved September 21, 2008 from Information Science Abstracts.