Re: requesting permission / fair use...

From: Bill Luddy <wjl[_at_]rh.edu>
Date: Tue, 21 Mar 2000 06:37:01 -0500

On 3/20/2000, Paul J. Heald <heald[_at_]arches.uga.edu> wrote:
>
> On Fri, 17 Mar 2000, Christopher Gwyn <christopher[_at_]icopyright.com> wrote:
> >
> > Hypothetical Case: Some one is wanting to use something protected
> > by copyright in a clearly "fair-use" way (perhaps making one copy
> > of one paragraph of a lengthy article to be read aloud in a classroom)
> > but -- being a well brought-up person -- seeks permission anyway. The
> > Publisher denies the permission request. The Requester decides to go
> > ahead with the use and is subsequently sued by The Publisher for
> > infringement.
> >
> > Would the fact that the person requested permission -- and that it
> > was denied -- have any bearing whatsoever on whether the use is or
> > is not an infringement?
>
> The Supreme Court in the 2 Live Crew case seems to indicate that a
> denied request for permission cuts in favor of fair use. After all,
> if a license is not available, then the owner cannot complain about
> having lost a license fee. This makes it harder for the owner to
> win the all important four prong of the fair use inquiry.

Beyond the 'fair use' issue, if the suggestion in the hypothetical that the use is in the "classroom", might the so-called 'face-to-face teaching exemption apply? To wit:

    Sec 110. Limitations on exclusive rights: Exemption of certain     performances and displays

          Notwithstanding the provisions of section 106, the following 
        are not infringements of copyright:

           (1)  performance or display of a work by instructors or 
        pupils in the course of face-to-face  teaching activities of 
        a nonprofit educational institution, in a classroom or similar 
        place devoted to instruction...


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Professor William J. Luddy, Jr.
Lally School of Management and Technology Rensselaer Polytechnic Institute
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   Email: <mailto:wjl[_at_]rh.edu>wjl[_at_]rh.edu Received on Tue Mar 21 2000 - 11:36:08 GMT