The recent slew of intellectual property rights lawsuits against institutions of higher education -- such as the lawsuit filed against Georgia State University over e-reserves, or the lawsuit over video streaming at UCLA -- make two things clear: how little is understood on campus about what "fair use" entails, and how critical it is to plan for risk mitigation as your campus community increasingly makes use of digital content.

To help unpack the complications involved, we turned to experts Steven McDonald, general counsel for the Rhode Island School of Design (RISD), and Kevin Smith, director of scholarly communications for Duke University's Perkins Library.

Smith and McDonald offer three tips for addressing fair use at your institution proactively rather than reactively.

1. Read and Negotiate the License

Smith notes that the growing "thicket of licenses" that allow us access to content can create difficulties later on. Notably, a corporate license can restrict use of electronic content to a far greater degree than the fair use clause in copyright law. Smith cites the example of a database licensed to the academic library. The database contains images from news sources, which students may want to incorporate in their presentations or their papers. The license for the database (which was not developed with higher education specifically in mind) restricts replication of the images to "editorial uses." In a case like this, Smith notes, the academic library has to be very clear on how it interprets editorial uses: "Is it acceptable to place an image in a PowerPoint and show it to your class? Probably. But can you post it to the class blog? Probably not."

Smith and McDonald offer this advice for faculty and staff signing digital licenses:

• Take the time to read the license, carefully. "Know what you're getting into," McDonald advises. "Make sure you do approve of the restrictions. If you don't approve -- if these restrictions won't work for you -- say 'no.' The more academic institutions say 'no,' the more corporate entities will listen."
• Negotiate the licenses.

Smith notes that some licenses will not be possible to negotiate; it's unlikely, for instance, that you will be able to negotiate with Apple for modifications to the 30-page contract for iTunes. But in many licenses for more specialized educational uses of electronic materials, it is often possible to negotiate the restrictions before signing. "You never get what you don't ask for," Smith remarks.

2. Establish a Campus-Wide Fair Use Policy

"Fair use is hotly contested," Smith reminds us. "People disagree strongly as to what is fair use. And even though education is mentioned as one of the paradigmatic areas where fair use applies, the specifics are uncertain." Smith and McDonald emphasize that the institution will have reduced liability if it can show that it has made a "good faith" attempt to define fair use for its campus.

McDonald explains: "If you are a nonprofit educational institution or an agent of one, and you do something believing in good faith that it is fair use, then the only thing the court can do is say 'don't do that again,' if the court agrees with you that the action was taken in good faith. If you can credibly make that argument, then there are no statutory damages."

"Good faith" entails having intentionally considered whether the situation falls under fair use, and having done your best to protect the copyright owner's interests. Toward this end, Smith suggests establishing clear policies or published guidelines that will empower faculty with criteria for making a reasonable and informed decision over whether their intended use of intellectual property is fair use.

3. Educate Your Campus

Smith and McDonald note that a series of popular but false assumptions about fair use persist among many faculty, staff, and students, including:

• If something is technically possible, it must be legal
• If my motives are pure and the use is for the good of students, that use must be legal

"So many people assume that if they right-click an image and save it to the desktop, that action must be legal," McDonald notes, "because the people who built the Internet surely built in the necessary restrictions. That's like assuming that just because I can drive my car at one hundred miles per hour, it must be acceptable to do so." Smith adds, "As for motives, pure motives do not immunize you from liability. They may possibly help cut down on damages, but they won't prevent a lawsuit."

It's critical that you act to counter these assumptions and educate your campus about your institution's policy on fair use. "Don't assume your faculty and staff will intuit the policy and gather it up by osmosis," McDonald remarks.

Here is a suggested approach:

• Messaging: First, communicate the message that your faculty both use copyrighted material and create copyrighted material -- this allows you to reframe discussions of fair use as relevant to everyone's property; "not only does the technology make it easy for you to infringe other people's copyrights," McDonald notes, "it makes it easier for others to infringe your copyright."
• Focus on availability: Smith notes that it is rare to get high attendance at a "learn about copyright" workshop, but that when a particular faculty or staff member has a question related to fair use, that question will be urgent; make your availability as a resource known, and respond to questions speedily.
• Look for opportunities to teach about intellectual property in classrooms: for example, talk to graduate students as they approach their dissertation or the publication of their first article, or undergraduates studying film or photography as they produce work. All of these cases speak to members of your campus community at the time when intellectual copyright is most visibly at stake for them. "Students get it and have sharp questions," McDonald comments. "They are endlessly curious. And it's likely that a few faculty members will come to the class, too, and word will spread."
• Walk through examples from their discipline. If you are speaking with photography students, discuss the landmark case that established whether photographs are copyrightable. If you are speaking with junior faculty, pull out an actual publishing contract and walk them through what its stipulations mean for them.

Finally, identify those occasions when you are likely to see high attendance from faculty, and make the most of them. For example, the introduction of a new learning technology or course management system is a good time to educate large numbers of faculty about copyright.