Steve, I think this is a very interesting posting and points to a doctrine that has not been discussed in this Series to this point. I have a bunch of questions, but will refrain from posing them all at once. It seems to me that the thrust of your post is that:
The challenge with Fair Use is that it is ambiguous. It is a defense whose application is subjectto significant interpretation in the court.
We can potentially reduce the ambiguity and risk of using if we act as the documentary filmprofessionals and draft a Statement of Best Practices in Fair Use, but apply it to education.
Is that right?
Now, we recognize that all sorts of “Fair Use” is applied in traditional residential settings where materials are distributed to a small group of learners, frequently in non-digital formats. It seems that the stakes were raised when content started being published in digital formats in learning management systems and on other systems used for education. Within the context of much of the discussion on this blog, do you see the possibility of framing Fair Use to allow “reuse” for educational purposes, or do you think that reuse is antithetical to the Fair Use doctrine as it is currently understood/interpreted?
Pushing the question a little further, what is the role that you see of Fair Use in “Open Education” and what are some of its principal limitations/challenges as it is currently understood/interpreted?
Cheers, Ken
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