THE STATE OF FAIR USE IN ACADEMIA TODAY

Wesley D. BlakesleeThe Johns Hopkins University

Baltimore, Maryland

Copyright 2005, Wesley D. Blakeslee.

THIS IS AN ADVOCACYPRESENTATION

• We will discuss where we are.

• We will discuss where we should be going.

• I am not your lawyer, and in individual cases you must rely on your own legal counsel.

Section 107. Limitations on Exclusive Rights: Fair use

Notwithstanding the provisions of Section 106 and 106A the fair use of a copyrighted work,

including such use by reproduction of copies or phonorecords or by any other means specified by

that section, for purposes such as criticism, comment, news reporting, teaching (including

multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

4 PRONGED TEST

(1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The Origin of Fair Use.

Fair use as a cohesive set of principles developed in English common law between 1740 and 1839.

In the United States, the concept of fair use has its basis in the Constitution, Article I Section 8, from which the concept of patents and copyrights springs, which grants Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

WHY DO WE CARE ABOUT THE ORIGIN

• Because fair use is a balancing test, not a black and white list of rules.

• To understand how the elements apply, it is necessary to understand the origin and purpose of fair use.

EARLY CASES

The first expression of the doctrine of fair use in the American court system is generally considered to have appeared in the opinion of Justice Story in Folsom v. Marsh, 9 F. Cas. 342 (D. Mass. 1841). However the concept was discussed two years earlier in Gray v. Russell, 10 F. Cas. 1035 (D. Mass. 1839).

Folsum v. Marsh first use the four elements of the test for fair use.

Folsom v. Marsh

• In deciding questions of this sort, much must depend upon the nature of the new work, the nature of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work, and the degree in which the original authors may be injured thereby.

Educational Fair UseEducational fair use means direct copying of the work in question with little change, for the purpose of providing materials to students in a nonprofit educational institution.

Initially there was no special exception for educational use, as such, and early nonprofit use cases found an infringement of copyright.

It was the transformative nature of the use rather than the ultimate purpose (such as education) that was important.

Educational Fair UseEarly Cases

MacMillan v. King, 223 F. 862 (D. Mass. 1914): defendant, as part of his practice of tutoring individual pupils, prepared outlines of the copyrighted material, and distributed them for the use of defendant’s pupils. INFRINGEMENT

Wihtol v. Crow, 309 F.2d 777 (8th Cir. 1962): defendant was the head of the vocal departments of a junior college and high school and a church choir director, and had created an arrangement of a very popular hymn for use by the school and church choirs.INFRINGEMENT

Williams & Wilkins Company v. United States.

NIH and its National Library of Medicine, which had a practice of copying articles from scientific journals and distributing copies of the articles to government agencies and its outside patrons, which were primarily commercial drug companies. NO INFRINGEMENT

Actually more of a research and library exception than a non-profit educational use exception

Williams and Wilkins

• Decided Under 1909 act (1973 below, 1975 Supreme Court).

• Fair use not a part of the statute, relied on common law.

• Evenly divided Supreme Court, so no S.Ct. analysis or opinion

Williams Recognizes Fair Use• Precisely because a determination that a use is "fair,"

or "unfair," depends on an evaluation of the complex of individual and varying factors bearing upon the particular use, there has been no exact or detailed definition of the doctrine.

• The courts, congressional committees, and scholars have had to be content with a general listing of the main considerations -- together with the example of specific instances ruled "fair" or "unfair."

Williams Four Pronged Test

• These overall factors are now said to be: (a) the purpose and character of the use, (b) the nature of the copyrighted work, (c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and (d) the effect of the use on a copyright owner's potential market for and value of his work.

Williams Purpose of the Use

• We start by emphasizing that (a) NIH and NLM are non-profit institutions, devoted solely to the advancement and dissemination of medical knowledge which they seek to further by the challenged practices, and are not attempting to profit or gain financially by the photocopying.

Williams Nature of the Copied Work

• the copied articles are scientific studies useful to the requesters in their work.

• This is important because it is settled that, in general, the law gives copying for scientific purposes a wide scope.

Williams Amount and Substantiality

• Both libraries have declared and enforced reasonably strict limitations which, to our mind, keep the duplication within appropriate confines. The details are set forth in Part I supra, and in our findings. Both institutions normally restrict copying on an individual request to a single copy of a single article of a journal issue, and to articles of less than 50 pages.

Williams Economic Loss• Focused on subscriptions

• The record made in this case does not sustain that assumption that subscriptions were reduced. The unrefuted evidence shows that annual subscriptions to the four medical journals involved increased substantially as did annual subscription sales.

Williams Rejects Circular Reasoning

• It is wrong to measure the detriment to plaintiff by loss of presumed royalty income -- a standard which necessarily assumes that plaintiff had a right to issue licenses. That would be true, of course, only if it were first decided that the defendant's practices did not constitute "fair use." In determining whether the company has been sufficiently hurt to cause these practices to become "unfair," one cannot assume at the start the merit of the plaintiff's position, i.e., that plaintiff had the right to license. That conclusion results only if it is first determined that the photocopying is "unfair."

Adoption of the 1976 Act

• Re-write of 1909 copyright law.

• Fair use codified for the first time.

• Congress specifically stated that its intention was not to change the law of fair use or to broaden it in any way.

1976 Act -Expanded Fair Use?

• Educational fair use, as such, had not been previously recognized, and most certainly “multiple copies for classroom use” had never been a class of uses found to be fair.

• Many writers believe that the 1976 act did in fact change and broaden the scope of fair use.

The 1976 Act

Section 107. Limitations on Exclusive Rights: Fair useNotwithstanding the provisions of Section 106 and 106A the fair use of a copyrighted work, including such use by reproduction of copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

4 Pronged Test

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;(2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.

Clear Language 1976 Act

The statutory language seems quite straight forward. It should be clear that making multiple copies of articles, such as scientific journal articles, for classroom use is in fact fair use so long as the four factors are considered. However, the Williams & Wilkins case, and the passage of the Copyright Act of 1976, was the high-water mark for educational fair use

The Erosion of the Right of Educational Institutions to use

Copyrighted Works for Nonprofit Educational Purposes

The Classroom Guidelines.

AD HOC COMMITTEE ON COPYRIGHT LAW REVISION:Coalition of 25 educational associations.

Representatives of the content industry"safe harbor"

These Classroom Guidelines were quoted in the congressional record as part of the legislative history of the 1976 Act.

Intended to be a minimum statement of fair use.

Guidelines Provisions

•  Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that: A. The copying meets the tests of brevity and spontaneity as defined below:     B.  Meets the cumulative effect test as defined below; and,     C. Each copy includes a notice of copyright.

Brevity Example

• Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work f not more than 1,000 words or 10% of the work, whichever is less.

• Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

Spontaneity Example

• The copying is at the instance and inspiration of the individual teacher.

• The inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.

Cumulative Effect• The copying is for only one course in the

school in which the copies are made.• Not more than one short item or two

excerpts from the same author, not more than three from the same work or periodical volume during one class term.

• Not be more than nine instances of such multiple copying for one course during one class term.

Guidelines Prohibitions

•     Copying shall not: • substitute for the purchase of books,

publishers’ reprints or periodicals.• be directed by high authority.• be repeated with respect to the same item

by the same teacher from term to term.• be from “consumable” works.• Create or replace “course Packs”.

Purpose Of The Classroom Guidelines

• Intended to apply to K through 12. - Totally inadequate for the college level.

• Rule of thumb, so narrow so that if followed, use would always be fair use.

Register of Copyrights Report

Guidelines are detailed standards describing permissible uses that represent a negotiated consensus among groups of interested parties

They do not have the force of law, do not control or alter statutory language, and are not binding on any party.

Their purpose is to establish a "safe harbor" of conduct -- a minimum standard that those endorsing them agree would qualify as fair use.

No Safe Harbor

The content industry has refused to acknowledge the Classroom Guidelines as a "safe harbor,” and has not agreed to forego suits when the Classroom Guidelines are followed, and in fact has reserved openly its right to bring an action even for copying that is within the Classroom Guidelines

The Classroom Guidelines have had more influence on the content of

university copyright policies then any case law, analysis, or statute.

The Course Pack Cases.

Bad cases make bad law.

The American of Association of Publisher began to press the Classroom Guidelines as the standard for educational use photocopying, as the upper limit of fair use.

In 1980 and 1981, AAP sponsored two lawsuits against private, off campus, commercial photocopy shops, each of which were settled when the shops agreed to adopt the Classroom Guidelines as their standard for photocopying.

The NYU CaseThe AAP, Addison-Wesley Publishing Company and eight other major publishers brought an action against New York University and nine of its professors and a commercial copy center, alleging copyright violations in creating course packs.

The case was settled when New York University adopted the Classroom Guidelines as the standard. That settlement required NYU to adopt the Classroom Guidelines, but without the language in the original preamble to the Classroom Guidelines that acknowledged that they are minimum standards and that photocopying outside of the Classroom Guidelines may be permitted.

The Problem with Guidelines.

Guidelines are often confused by the participants and the court.

Guidelines become the outer limit not the minimum.

Example Princeton U. Press v. Mich. Doc. Svcs.:Although the Classroom Guidelines purport to >state the minimum and not the maximum standards of educational fair use’, they do evoke a general idea, at least of the type of educational copying Congress had in mind.

Spontaneity• Concept first introduced in Classroom

Guidelines.• Idea was to preserve the “teachable

moment” to in essence allow use when immediate need and no opportunity to obtain permission.

• A good idea in concept, but not when it becomes a requirement of Fair Use.

Cumulative Effect

• No use of the same copy for more than one semester (Spontaneity in disguise?).

• Led to the permission fees fallacy.

Permission Fees-The Fallacy of Circular Reasoning.

Originally the issue of impact on value of the work copied focused on the original work itself - - i.e. how would the value of the original thing -book, journal subscription, etc. - be affected

Spontaneity, which focuses on a time inability to obtain permission, and its cousin “cumulative effect” brings permission fees into fair use considerations.

Williams & Wilkins recognized that to look toward permission fees was circular reasoning.

American Geo. v. TexacoPermission fees and the Classroom Guidelines came to the fore initially in the course pack cases.

American Geo court stated “This is the sort of "spontaneous" copying that is part of the test for permissible nonprofit classroom copying.”, thus making the Guidelines and spontaneity not a minimum, but the “test” by which classroom copying to be measured.Distinguished Williams and Wilkins view of permission fees as circular reasoning: Whatever the situation may have been previously, before the development of a market for institutional users to obtain licenses to photocopy articles, [citing Williams & Wilkins], it is now appropriate to consider the loss of licensing revenues in evaluating >the effect of the use upon the potential market for or value of’ journal articles.

Amount and Substantiality

Am. Geo. also established that individual articles are to be considered, so that copying an entire article is using 100%, weighing against fair use, rather than considering the article as a small part of the content of the entire journal.

Where We Are Today.

Michigan Document Services and Kinko’s teach that course packs are not permitted.American Geophysical held that an individual article from a journal can be considered as copying 100% of the copyrighted work. But that is a commercial copying case. The Senate report on the 1976 act specifically recognized that fair use in the classroom would permit copying an entire article.

No case of a teacher handing out multiple copies of articles for classroom use has ever been decided by the Supreme Court since the passage of the 1976 Act.

The ability to obtain permission, and the availability of an easy to use permission process will weigh against fair use.

The Supremes

• The adverse cases are concentrated in the appellate courts.

• Supreme Court Cases generally recognize fair use, and found fair use in the cases before them.

• Sony, and Acuff – Rose particularly strong• Harper and Row – found no fair use, but work was

unpublished, and the doctrine of Fair use was recognized.

How can we help ourselves

Eliminate spontaneity as a requirement, recognize it as an extension.

Be strict on the four factors.

Excessive usage from text books and other educational materials requires permission.

Limit journal articles to a reasonable amount such as no more than five from any journal year.

Worry less about the “cumulative effect” and recognize that fair use is fair use, even the second time around.

SPECIFIC SITUATIONS

Materials Posted on the Internet

• Fair use is still fair use.

• The internet, however, creates challenges, regarding the 4 pronged test.– Tighten requirements– require passwords– Prevent further copying– Look to the Teach Act for guidance.

Why the Internet is Challenging

• Remember the purpose of the four pronged test - not a rote process, but an analysis.

• Not a formula, but a balancing of the rights of copyright owners with the goal of promoting the progress of science and the useful arts.

• The internet vastly increases the risk of multiple, run away copies being disseminated, so Fair Use rights will be limited accordingly.

The Teach Act

• Amendment to Section 110 of the copyright act in 2002.

• Section 110 deals with remote education.• Teach Act address distance education via digital

transmissions.• Has nothing to do with Fair Use.• But – Fair Use analysis of internet based materials

must consider Teach Act protections.

Teach Act Website

• N.C. State University has a particularly good analysis of the Teach Act.

• http://www.lib.ncsu.edu/scc/legislative/teachkit/

WEB CT, Blackboard and Similar Services

• Look to Teach Act – if fall within the provisions you may proceed.

• Typical use will not be within Teach Act – so must do a fair use analysis.

Media Conversion

• In most cases, when starting with a lawful copy, converting to a new media will be a Fair Use.

• Conversion must be for ease of use, not for making multiple copies – E.g. – converting an analog video or audio tape

to DVD, so can be used on computers in the language lab.

Media Conversion

• But, cannot circumvent technical measures to prevent copying.– E.g. Break the copy protect code on a DVD, to

make a video cassette copy.• Separate issue from Fair Use.• Covered by 17 USC 1201 et seq.