Fair Use

This is an issue that is slowly perculating down even to the school club level.

A political science club wants to show various films related to different issues in democracy that have occured or are currently occuring.

It can be checked out through Blockbuster or Netfix. It is not for profit nor fundraising.

A studio permission is now required to show any film. How does one go about that when the copyright law on the film says it may be shown for non commercial uses?

In the classroom, may we download a clip showing ballroom dances during the ragtime era without getting a copyright? Again, this is a group project for a class in English.

Does anyone really expect me, a freshman student, to understand copyright law in order to use material on the internet for educational reasons?

Lauri Wiss, student at Brookhaven Community College, at 7:40 am EDT on October 21, 2005

Intellectual entitlements

I was pleased to see that Professor Gillespie made the point of copyright’s conflict with freedom of speech. I would go further and say that intellectual property isn’t property at all, it’s a form of government entitlement that we expand at the peril of freedom of speech and expression.

Steve Foerster, Executive Director at Free Curricula Center, at 12:04 pm EDT on October 21, 2005

Good for you!

Thank you for pointing this out— all I’ve heard otherwise is how convenient it will be. After hearing a talk a year ago by CCC reps to Interlibrary Loan librarians and staff, where they stated “but fair use is for print materials", and after looking at a recent license agreement for an electronic journal where we are told we can ILL electronic versions of articles IF we send the publisher an a-mail every 6 months telling them what institution we sent them to (and how many), it seems clear that fair use really needs to be defended.

Elizabeth H., at 4:27 am EDT on October 22, 2005

Fair Use or Parasitical Publishing?

Tarleton Gillispie seems to think that there is one view of “fair use” in universities, and that universities have an obvious interest in resisting mechanisms that make clearing permissions simpler if faculty can instead resort to “fair use” to justify their making of multiple copies. Since he apparently believes that any copying is justified so long as it serves “socially beneficial ends,” I suggest that he read carefully what Judge Jon newman wrote in the majority opinion in the landmark Texaco photocopying case: “We would seriously question whether the fair use analysis that has developed with respect to works of authorship alleged to use portions of copyrighted material is precisely applicable to copies produced by mechanical means. The traditional fair use analysis, now codified in section 107, developed in an effort to adjust the competing interests of authors—the author of the original copyrighted work and the author of the secondary work that’copies’ a portion of the original work in the course of producing what is claimed to be a new work. Mechanical ‘copying’ of an entire document, made readily feasible and economical b y the advent of xerography,...is obviously an activity entirely different from creating a work of authorship. Whatever social utility copying of this sort achieves, it is not concerned with creative authorship.” This is a crucial distinction, seldom noted by those who call for an aggressive application of “fair use” in the academic context, who confuse the ability to make what are known as “transformative” uses of copyrighted material—which are indeed crucial to scholarship and should be strongly defended—with the sheer convenience of making multiple copies of documents to save time and money, which is nothing more than a form of parasitical publishing. The latter activity strikes directly at the economic base of scholarly publishing, which it should be in the interest of junior faculty like Dr. Gillispie to protect, since he will likely need to avail himself of the services of a university press in order to publish his revised dissertation or another book that will enable him to achieve tenure and promotion. I would encourage all those who think about “fair use” to keep this very important distinction in mind and remember what is really in their interest to fight for when it comes to defending “fair use” of copyrighted material. For anyone interested in a fuller elaboration of this point, see my article “Fair Use: A Double-Edged Sword” at http://www.utpjournals.com/jour.ihtml?lp=jsp/jsp321.html.

Sanford G. Thatcher, Director, Penn State University Press at Penn State University, at 11:48 am EDT on October 24, 2005

You can’t defend copyright by invoking the free market. The whole purpose of copyright is to avoid the consequences of the free market supply and demand curve for such products, as copyrighted products effectively have infinite supply (especially with modern technology) pushing price down to zero. Copyright is a limited government granted monopoly, which the US constitution permits to improve the progress of the useful arts and sciences.

We the people are the ones who granted copyright holders their temporary monopoly rights in order to improve our society. Unfortunately, corporate interests have written every copyright law since 1976 (see Jessica Litman’s Digital Copyright for a history), distorting the balance between copoyright holders and the public in favor of neither authors nor the public but rather in favor the middlemen—immortal corporations who have an interest in maintaining their monopolies forever and with the ability to tirelessly lobby year after year until they get the desired expansions of their monopoly rights.

In the past, we made compromises when it came to copyright violating technologies like radio and cable television, typically in the form of a mandatory license. In more recent times, the middlemen corporations have squelched some potentially disruptive technologies like Napster and MP3.com and crippled others like DVDs, so that they could maintain the privileged position that technology as of the mid-20th century could afford them. Publishers are now shipping textbooks on DVD that expire, and using the ability of the DMCA to lock up even public domain content behind their DRM systems, so yes, they are opposed to universities and the traditional meaning of copyright.

jw, at 9:45 am EDT on October 25, 2005

Thank you for a marvelous piece of analysis. You offer an innovative view of the CCC initiative, as well as a stirring defense of fair use. Much appreciated.

It’s noteworthy that the dissenters to your suggestions are focused almost exclusively on “free market” principles (the analogue to those who call file sharing “theft"). While I see their viewpoint (and in the file sharing debate, am even sympathetic!), I have a few caveats to raise:

(i) “Free market” principles are of course as relevant to IP as to, say, property rights. However, as the Constitution itself decrees, the “property” rights of IP are limited in scope, nature, and duration. They are not a “justification” of IP rights, as Scott wrongly indicates. Rather, it is a tradeoff that is offered: limited rights, for the purpose not only of economic gain to the author but also of general “promotion” of the sciences and useful arts (that is the Constitutional mandate, by the way).

So no, Scott, just saying “authors won’t write if they don’t have incentives” isn’t enough. Congress may have been swayed by interests — but they may not be right. And it is naive (politically) to say to stakeholders, such as academics, that “you should just elect someone else” if Congress is wrong. Yeah, we should also make lots more money and pay lobbyists, too. See that happening soon? (and your slam about the “Russkies” is trying to condemn a point of view for being too Lefty — yet the idea of balanced IP rights is embraced by many conservatives, including Posner et al.! — so it’s, um, a bit gratuitous)

(ii) I sympathize with academic publishers. Of course they want and need to make profits (insofar as possible). But we are talking about essentially “noncommercial use” in the classroom, are we not? Would extracting further profit from that realm be worth it? That is, would it compensate for detracting from one of the mainstays of the fair use doctrine — academic use? Perhaps so. Perhaps it really is similar to an ASCAP type of arrangement, under which only the royalty must be paid, and permission not be even considered. But that is a decision that shouldn’t be swept under the rug. This is an area of noncommercial use (although perhaps use in the for profit area of learning might make that a more interesting question), and it’s been pretty well treated as fair use (pace Texaco, which many IP experts consider questionable and/or poor law) to date.

(iii) One last thing academics and academic publishers alike might well consider is the very nature of academic writing and work. In this arena, it’s pretty hard to argue that most academics write solely (or even mainly) for the financial reward. What kind of royalties, especially in the long term, are we talking about? (ok, not Samuelson’s Econ 101 cash cow, but most regular works) We’re hard pressed to say that money is the coin of the realm. No, reputation is.

And reputation of writers isn’t only gained by publication, but as much at least by circulation. Those who want to be read, and discussed, and exchanged — even without meny changing hands — might find it beneficial to see the greatest circulation possible. And that might mean foregoing royalties, even of the CCC nature, while enjoying being read. I’d certainly consider that a rational cost/benefit tradeoff if it were my work in question. I wonder if academics have really thought about that factor, though.

Look, I am not opposed to a copyright scheme (in case I didn’t make it clear). But it’s silly to say it’s either “asking to get it for free” or “money trumps reputation every time” at this point. What’s important, in my humble opinion, is to realize that IP has always entailed tradeoffs, as Mr. Gillespie rightly says. The problem is, sometimes decisions are made without the tradeoffs being recognized. And, more importantly, without all the stakeholders in the outcome being at the table. We should hear more from academics who have thought this through!

Thanks again for a thought-provoking article!

savitri, at 3:23 pm EDT on October 27, 2005

Mr. Ide,

Photocopying an entire book may violate the fair use doctrine, as the amount of material copied is a factor in the fair use test (as is “noncommercial use"). The use of your book in this instance might, in other words, be deemed a copyright infringement.

The one example does not, of course, make the case that all fair use is “theft". All it shows — if anything — is that this ONE instance was NOT fair use.

Really, a false inference from an isolated copyright infringement does not in the least advance the discussion on *fair use*.

savitri, at 1:26 pm EDT on October 28, 2005