There isn't really any post-1976 Act case law on point regarding the
non-profit educational status of the user, in part, because the law suits
against copy shops have led to restrictive views by academic institutions
themselves -- as your post confirms. Since the 1976 Act, educational
photocopying cases have largely focused on the commercial copy shop trying
to stand in the shoes of the educator. For background on the issue and
pre-76 Act cases, you might be interested in a 1992 article I wrote:
http://www.kasunic.com/article1.htm
You should bear in mind, however, that the fourth factor does not focus on the status of the user -- that's largely a first factor issue. Pre-76 Act cases that addressed non-profit use nevertheless found an adverse effect on the market for the copyrighted work, since the copying would be likely to displace sales. This is particularly true when the work being copied is marketed to students.
The article I referenced above, as well as a follow-up article: http://www.kasunic.com/article2.htm, provide some context for the considerations that should be examined to decide whether a particular use is fair or not in the academic photocopying context.
The "multiple copies for classroom use" clause in the preamble of section 107 was largely a legislative concession made to educational institutions in lieu of the general educational exemption that was desired. That clause together with the example of non-profit educational use in the first factor and the discretion for a court to remit statutory damages under section 504(c)(2) for a reasonable, good faith belief of fair use were Congress's way of giving educators some support in the law without granting them a general exemption as they had desired. Yet, as the concessions stand in the law, non-commercial, multiple copies for classroom use MAY be a fair use in particular circumstances, but are not necessarily fair. One must do the full fair use analysis. In my view, what the multiple copy clause would more frequently relate to is the situation where a professor finds the pedagogical need to handout a work for discussion in class, e.g., a timely article that could not have been planned for in advance. Although the Guidelines in the legislative history may cover such activity, it nevertheless appears to be important to have this clause in section 107 itself. It highlights that a reproductive use -- one that doesn't transform a work itself -- may nevertheless be transformative or productive in the context of the use, e.g., for pedagogical purposes.
Best,
Rob Kasunic
Visiting Assistant Professor
Washington College of Law
rkas[_at_]wcl.american.edu
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Belvadi, Melissa
Sent: Wednesday, October 18, 2006 4:21 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: please help - case law for mult copies?
I appreciate the pointers and opinions that Steven, Laura, and Seso gave me, but what I really was asking for was case law or other specific court or lawsuit incidents that might be relevant to a purely non-profit, entirely print face-to-face context. Utexas can make any guidelines they want for internal use, but they don't have the force of law, nor do any of the other guidelines in the links provided.
I would have thought that my situation was the simplest example of a straightforward interpretation of the "multiple copies for classroom use" clause, and if what we want to do isn't allowed under Fair Use, I would like for someone to give me an example of what IS legally allowed under that clause according to an actual court of law. I don't accept publisher-agreed guidelines as having any force of law unless the legislature or courts have specifically given them that. Please cite a case for me, if that has happened.
Thank you again!
Melissa Belvadi
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Received on Mon Nov 27 2006 - 22:35:00 GMT
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