McGeveran, William and Fisher, William W., "The Digital Learning Challenge: Obstacles to Educational Uses of Copyrighted Material in the Digital Age" (August 2006). Berkman Center

Research Publication No. 2006-09 Available at SSRN: http://ssrn.com/abstract=923465

Description:

This is a report on a yearlong study produced by The Berkman Center for Internet and Society at Harvard University. It looks at the obstacles that Fair Use law and copyright owners create in the process of attempting to further develop the full potential of the educational uses of technology. The report identifies four main problematic areas:

a.     The lack of clarity within the copyright law.

b.    The large adoption of digital rights that keeps users from accessing content.

c.     The increasing amount of licensing that creates mounting paperwork for users to overcome.

d.    The extreme practices by gatekeepers.

Analysis:

This report speaks of the problematic nature of copyright laws and current practices of Fair Use. It informs the readers about the great wall that is being created between students and the materials that should be available for their education and about the perils that such a state of affairs brings to the future of education. At the same time, the report effectively documents and clearly identifies the top four obstacles. Thus, it gives readers a reachable solution and concludes with a series of sound recommendations that if applied, will bring much clarity and fairness to the tense relationships between copyright owners with professors, scholars and artists who claim Fair Use.    

"Will Fair Use Survive?" (New York: Brennan Center for Justice, 2005).

www.fepproject.org/policyreports/fairuseflyer.html

Description:

This study conducted by the Brennan Center for Justice at New York University School of law researched the causes and consequences of the increasingly heavy hand that is being exercised by copyright and trademark owners on limiting Fair Use. The study highlights the importance of preserving Fair Use for the benefit of democracy, the public in general and to ensure that "the owners of intellectual property cannot close down the free exchange of ideas." It states that copyrighting is a confusing arena for users and one in which the powerful can overstep limitations of Fair Use. It can also be a permissive arena in which intellectual property owners can exercise undue authority. The study concludes with a series of normative and legal recommendations to improve the standing for the users and encourage copyright owner to exercise restraint.  

Analysis:

The study's central team is helping the reader to understand the increasing pressures facing Fair Use consumers and the urgent need to take action to prevent copyright owners from eroding the establish laws of Fair Use. It bases it claims on research that points out the weakening of Fair Use law as well as the fact that intellectual property owners have effectively developed an atmosphere of fear around it. By doing so, they have deterred and ultimately limited the free exchange ideas. The study documents several examples of big corporations taking action against individuals whom they claim had violated their intellectual property rights. These examples underscore the unequal legal status that individual users face when attempting to claim Fair Use. Finally, the study questions the survival of Fair Use under the current practices.

The Growth of Intellectual Property:A History of the Ownership of Ideas in the United StatesWilliam W. Fisher III. forthcoming in Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999) http://cyber.law.harvard.edu/property99/history.html

Description:

This publication is best described as an historical and outlined recompilation of who or what created legislation such as copyright law and intellectual property. It includes the rights to protect an author's "original" work as well as the protection of celebrities who wish to profit from their own image.

Analysis:

William W. Fisher's publication on the historical growth of intellectual property in the United States summarizes the history of copyright law while at the same time takes the reader on a journey that both explains and criticizes the forces that had taken copyright law to the place that it occupies today. Fisher identifies three main forces that impact the growth of intellectual property: economics, ideology and politics. He consistently emphasizes that for the most part and throughout the entire process, the consumer (the public) has been left out of the discussion. Thus, the growth of copyright law has been primarily developed and described by those having a personal interest in it and wish to profit from it. Dr. Fisher calls into questions ideas such as "original writing" pointing out that writers always support and draw their work from previous work. This is a very well documented and well written article that at the same time points out the problems with intellectual property and on some level encourages readers to develop their own agency in order to prevent the erosion of consumer protections such as Fair Use.