An interesting and contentious thread has developed on the sidelines of the listserv and, as the two people engaged in this discussion don't seem to be seeing eye-to-eye on it, I thought I would submit the entire thread to CNI. I welcome the input of others! (And I apologize up front for the size of the message-don't mean to clog anyone's mailbox.)
The big issue: are coure packets ever likely to be held fair use under current law? The following message of Georgia Harper, General Counsel of the University of Texas, initiated the subsequent exchange:
I have a question about the impact it might have on a claim of fair use for making coursepacks under the following circumstances:
What do you think? should the copyshop forget about fair use for those copies that are made by the outsource?
Writing to CNI, Matthew Watters replied:
All of this simply raises the question: is there *any* reproduction of copyrighted materials for use in course packets that falls within the fair use limitation? I thought that, under cases like Princeton Univ. Press v. Michigan Document Services and Basic Books v. Kinko's, as well as under the Fair Use Guidelines for Books and Periodicals, just about *any* photocopying for *coursepacks* (and not, by way of contrast, spontaneous copying of classroom handouts) was an infringing use unless permission was obtained.
What possible fair uses are the University of Texas copyshop making of copyrighted materials when it reproduces those materials for course packets to be sold to students? What is a "university's prescribed fair use limit," at least where coursepacks are concerned? Please enlighten me here!
(As to Georgia's questions, it doesn't seem to me that it would matter whether the coursepacks are produced by the on-campus, "non-profit" [albeit revenue-producing] copy shop, or by subcontractors whom they hire to do the actual duplicating. A fair use would be a fair use. For instance, when a faculty member makes a copy for use as a classroom handout--a use falling within the Guidelines--he can go to even a commercial copy shop to make the copies. Everyone's protected, if it's a fair use. Still, I can't see any duplicating connected with the production of coursepacks still falling under the fair use limitation under current interpretation of the law, even if the actual copying is being done by a "non-profit" campus copy shop.
Someone--everyone--correct me if I'm wrong! I could save a lot of my university's money on royalties!)
In response, Paul Heald wrote directly to Matthew Watters: (The remaining discussion took place off the CNI listserv.)
Reread the Michigan Documents case--everything hinges on the fact that the defendant was a commercial copyshop. The court is very careful to reserve the question of University copying. I have our copying facilities here do my coursepack, and they do not require I get permissions.
Finally, as a matter of Eleventh Amendment law, a very strong argument can be made that the University is immune from suit, even if it is an infringer.
Matthew Watters responded:
The way I read Michigan Documents, the fact that a "non-profit" on-campus copy shop produces the copies would only go to the first of the four "fair use" factors set out in 17 U.S.C. sec. 107, viz., "the purpose and character of the use." The remainder of the court's analysis, particularly of the dominant fourth factor ("the effect of the use upon the potential market for or value of the copyrighted work") would not change one iota if the copyshop in the MDS case had been an on-campus shop. Even an on-campus shop *charges* for copies (in competition with off-campus shops), so I doubt that calling itself "non-profit" would even change the analysis under the first factor much.
I am employed by a state-run university to obtain permissions for course packets and I know I have many counterparts at other public institutions. The University of Georgia shouldn't be so sure that it's protected if it's making copies for course packets without obtaining the necessary permissions!
Although I'm only speaking off the top of my head here, I believe that the 11th Amendment might only protect a state-run university from a suit for money damages. However, a suit to enjoin such an institution's copy shop from making infringing uses of copyrighted materials could still be brought.
Meanwhile, I would suspect that the university would be amenable to a suit for damages much as it is for tort actions, etc. If you're correct about the 11th Amendment, that would put all public universities above the copyright laws while private institutions would remain subject to it. Somehow, I don't think that this is what the law intends. Correct me if I'm wrong.
Paul Heald then wrote:
Maybe we misunderstand each other. I'm not refering to an "oncampus copy shop" but rather our central duplicating services department. Only faculty and staff have access. I'm not sure that it matters, though, in terms of the First Factor. Given how horribly wrong the Sixth Circuit is regarding consideration of the Fourth Factor, I would be very confident in advising our University that coursepack production is usually a fair use (although I can easily imagine an infringing coursepack that might really effect the market for a copyrighted work).
> Meanwhile, I would suspect that the university would be amenable
> to a suit for damages much as it is for tort actions, etc. If you're
> correct about the 11th Amendment, that would put all public universities
> above the copyright laws while private institutions would remain subject
> to it. Somehow, I don't think that this is what the law intends.
> Correct me if I'm wrong.
I know the result sounds weird, but it was precisely the immunity of state universities that led Congress to amend the copyright and patent acts to make states liable for infringement. Those statutes, however, probably do not survive the Seminole Tribe case. Two weeks after Seminole Tribe, the Supreme Court vacated without opinion a Fifth Circuit opinion awarding damages against the state of Texas under the copyright statute.
You are right about injunctions.
And, Matthew Watters wrote:
I still would see the type of duplicating service you use as only going to the first part of the four-part fair use test. By the scenario you present, course packets at your institution are purely a non-profit educational use. There is no commercial duplicating involved. So, in any fair use analysis, this factor would favor you. But what about the other three factors? Particularly the third factor (amount and substantiality of the portion used in relation to the copyrighted work as a whole) and the dominant fourth factor (effect of the use on the potential market for or value of the copyrighted work)? If you are duplicating entire journal articles, or significant portions of books, semester-after-semester, without permission or paying royalties, it still seems to me that you are running beyond fair use. Allowing students to avoid purchasing the works themselves is a practice which, if widespread, would have adverse consequences on the market for such works. Certainly such uses are beyond fair use it as it is defined in the Fair Use Guidelines or by the Sixth Circuit. (Calling them wrong doesn't change the state of the law.)
> I know the result sounds weird, but it was precisely the
> immunity of state universities that led Congress to amend the
> copyright and patent acts to make states liable for infringement.
> Those statutes, however, probably do not survive the Seminole Tribe
> case. Two weeks after Seminole Tribe, the Supreme Court vacated
> without opinion a Fifth Circuit opinion awarding damages against the
> state of Texas under the copyright statute.
Please give me a cite to this case; I'm dying to see it! I still cannot imagine any court holding a state university to a different standard of liability for copyright infringement than a private university. Since you and I have a disagreement here (and it is not about what the law *ought* to be--I think I agree with you there--but about what the law *is*), could I have your permission to post a digest of our exchanges to CNI? I would like to know what others think about this and am regretting that we are having this discussion on the sidelines.
Cheers to you, too!
Accordingly, Paul Heald responded:
> I still would see the type of duplicating service you use as only going
> to the first part of the four-part fair use test. By the scenario you
> present, course packets at your institution are purely a non-profit
> educational use. There is no commercial duplicating involved. So, in
> any fair use analysis, this factor would favor you. But what about the
> other three factors? Particularly the third factor (amount and
> substantiality of the portion used in relation to the copyrighted work
> as a whole)
The third factor is mixed. Mostly I copy snippets of books and articles; sometimes a whole article is copied.
> and the dominant fourth factor (effect of the use on the
> potential market for or value of the copyrighted work)? If you are
> duplicating entire journal articles, or significant portions of books,
> semester-after-semester, without permission or paying royalties,
But I have no obligation to pay royalities if it's a fair use. I do have an obligation to get permission if what I do effects the market for the works I copy. It does not. If my students had to buy all of the works in my coursepack, the would have to pay more than $450 dollars in materials. I would not teach the courses under those circumstances. In other words, my copying does not cost anyone a sale, because in the absence of copying, no sale would occur. Getting me to refrain from copying will not earn the publishers a dime. I cause no publisher to lose a sale or a subscription. Since they are not harmed in the slightest, my use is fair.
You'll argue that they lose a royalty, not a sale. Well, as the dissent noted in the MDS case, if you buy the circularity argument, no use could ever be fair, because every single act of copying without paying a royalty costs the publisher a royalty.
And remember, if you provide protection to publishers in these circumstances, the do not have to grant permission to copy. They can say "no." There is no compulsory licensing in the United States. In other words, a publisher will have total control over whether I can even teach a Law and Literature class (there are no current textbooks available). Copyright law was not meant to provide the means for publishers to control what is taught in our classrooms.
> it still seems to me that you are running beyond fair use. Allowing
> students to avoid purchasing the works themselves is a practice which,
> if widespread, would have adverse consequences on the market for such
> works. Certainly such uses are beyond fair use it as it is defined in
> the Fair Use Guidelines or by the Sixth Circuit. (Calling them wrong
> doesn't change the state of the law.)
I don't live in the Sixth Circuit and neither do you. The MDS case is not "law" in any sense where we do our copying. All evidence points that the Eleventh Circuit (Georgia, Alabama, Florida) and the Supreme Court would disagree with the 6th Circuit regarding the all important 4th Factor.
> > I know the result sounds weird, but it was precisely the
> > immunity of state universities that led Congress to amend the
> > copyright and patent acts to make states liable for infringement.
> > Those statutes, however, probably do not survive the Seminole Tribe
> > case. Two weeks after Seminole Tribe, the Supreme Court vacated
> > without opinion a Fifth Circuit opinion awarding damages against the
> > state of Texas under the copyright statute.
>
> Please give me a cite to this case; I'm dying to see it! I still cannot
> imagine any court holding a state university to a different standard of
> liability for copyright infringement than a private university. Since
> you and I have a disagreement here (and it is not about what the law
> *ought* to be--I think I agree with you there--but about what the law
> *is*), could I have your permission to post a digest of our exchanges to
> CNI? I would like to know what others think about this and am
> regretting that we are having this discussion on the sidelines.
The case is Chavez v. University of Houston. It involved Arte Publico Press, I think. I don't have the citation in front of me, but you can get both the Fifth Circuit decision and its vacation off of Westlaw or Lexis. Read Seminole Tribe first, and the exchange in footnotes about its effect on copyright law.
Have a good weekend.
To which Matthew Watters once more replied:
Paul,
You wrote:
> But I have no obligation to pay royalities if it's a fair use. I
> do have an obligation to get permission if what I do effects the
> market for the works I copy. It does not. If my students had to buy
> all of the works in my coursepack, the would have to pay more than
> $450 dollars in materials. I would not teach the courses under those
> circumstances. In other words, my copying does not cost anyone a
> sale, because in the absence of copying, no sale would occur.
> Getting me to refrain from copying will not earn the publishers a
> dime. I cause no publisher to lose a sale or a subscription. Since
> they are not harmed in the slightest, my use is fair.
Isn't a court likely to see this as a somewhat disingenuous argument, viz., that if I had to make my students pay for these materials, I wouldn't even assign them? As an instructor, you are going to assign *something* for your students to read, whether its a textbook you order through the campus bookstore, or a reading placed on reserve in the library. The latter is an impracticable option for classes with sizable enrollments. Therefore, you're going to expect a court to take it at your word that you wouldn't duplicate these particular materials if a royalty were attached, yet you find them valuable to assign to your students if they can be read for free. The only thing that saves this argument (that I can see) is that you would probably assign *different* materials if royalties were charged. Hence, no sales would be lost by the *particular* publisher who might be suing you for infringement. The circularity of this is disturbing, however: you could continue selecting alternative readings until you find a publisher who doesn't sue! (Perhaps that is the flipside of the circularity argument cited by the MDS dissenters . . . .)
> You'll argue that they lose a royalty, not a sale. Well, as the
> dissent noted in the MDS case, if you buy the circularity argument,
> no use could ever be fair, because every single act of copying
> without paying a royalty costs the publisher a royalty.
I don't see the difference between a royalty and a sale. When a bound, published copy of a work is sold, to a library or to a student, that income to the publisher may be defined as a "sale." When additional copies of the same material are produced by photocopying (something protected under the reproduction right of copyright), that income may be defined as a "royalty." Both, however, are income from the reproduction of their copyright materials. The difference only hinges on whether its a printed "original" or a reproduced "copy." The holder of the copyright is still entitled to income for each copy made, however it is made. In short, unlike you, I do not see the entitlement to a royalty at issue, unless you can wench your use into the scope of the fair use limitation.
To escape from your circularity argument: *some* acts of copying, by their nature as "fair uses," do not not *entitle* the copyright owner to a royalty; hence, the publisher has not been *cost* a royalty by your fair use. Which brings me back to the beginning of this e-mail message: a court would have to take it at your word that you would not have used this material if your students had been required to pay for it and, so, did not cost the copyright owner any income. There was no effect on the potential market of the work, in the parlance of the statute. But, *everyone* could argue that if sued for copyright infringement. I don't think courts will buy it.
> And remember, if you provide protection to publishers in these
> circumstances, the do not have to grant permission to copy. They can
> say "no." There is no compulsory licensing in the United States. In
> other words, a publisher will have total control over whether I can
> even teach a Law and Literature class (there are no current textbooks
> available). Copyright law was not meant to provide the means for
> publishers to control what is taught in our classrooms.
But will there *ever* be a market for a law and literature textbook if instructors insist on providing reading materials to their students free of charge? Why aren't *textbooks* free, by your argument?
> I don't live in the Sixth Circuit and neither do you. The MDS
> case is not "law" in any sense where we do our copying. All evidence
> points that the Eleventh Circuit (Georgia, Alabama, Florida) and the
> Supreme Court would disagree with the 6th Circuit regarding the all
> important 4th Factor.
You've certainly got me thinking! I will definitely read further. I would like to think you are right, philosophically, but still imagine you will turn out to be wrong, legally. The sum of your argument still seems to be that educational use (unsullied by a commercial transaction) is a fair use. But there is an undeniable effect on the market for the works of *academic* publishers if their journals and books are reproduced willy-nilly without royalties being paid, so I suspect that the fourth factor will not be dismissed as easily as you say. In a battle between universities and publishing companies, I rather suspect the latter will prevail in imposing stricter definitions of fair use that you are employing.
Thanks for the discussion! If you're correct, there's a lot of copyright permissions people toiling away at university campuses around the country for nought (myself included) who are going to feel pretty silly. Not to mention all the royalties that are being paid by students for no reason!
Other members of CNI, please help resolve this!
Matthew Watters
<watters[_at_]prtaxp.unl.edu>
Received on Fri Mar 14 1997 - 21:09:23 GMT
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