Re: Coursepacks

On Sun, 21 Jun 1998, Bob Stock <bstock[_at_]ucla.edu> wrote:
>
> On 6/20/98, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
> >
> > David Post <postd[_at_]erols.com> wrote:
> > >
> > > I think this is a fair reading of these two cases (not to mention
> > > the statute itself) ...
> >
> > I think so, too. In fact, as I read the statute, it's fair use for
> > YOU, too, not just your students.
>
> Hey, fellas, what statute are we talking about? Do you mean the
> introduction to 107 or something else? If you mean the part of 107 that
> reads --
>
> "Notwithstanding the provisions of sections 106 and 106A, the fair
> use of a copyrighted work, including such use by reproduction in
> copies... for purposes such as... teaching (including multiple
> copies for classroom use)... is not an infringement of copyright."
>
> -- wasn't that the part that MDS said still had to be evaluated on a
> case-by-case basis (whether you agree with that conclusion or not)?
>
> "And the statutory factors set forth in the next sentence must be
> considered in determining whether the making of multiple copies
> for classroom use is a fair use in "any particular case," just as
> the statutory factors must be considered in determining whether
> any other use referred to in the first sentence is a fair use in
> a particular case. To hold otherwise would be to subvert the
> intent manifested in the words of the statute and confirmed in
> the pertinent legislative history."
>
> From MDS.
>
> If it's not 107 that you both mean, could you clue us (me anyway) in as
> to which statute you're referring to?

The majority in MDS also said "As to the proposition that it would be fair use for the students or professors to make thier own copies [of the coursepack], the issue is by no means free from doubt. We need not decide this question..." 99 F.3d 1389. It's dicta and it contradicts my understanding of 107, but it's in the court's decision.

The majority in MDS also say in their dicussion regarding the circularity argument that "Where, on the other hand, the copyright holder clearly does have an interest in exploiting a licensing market--and especially where the copyright holder has actually succeeded in doing so--'it is appropriate that potential licensing revenues for photocopying be considered in a fair use analysis.' American Geophysical, 60 F. ed at 930" ... "Congress has implicitly suggested that licensing fees should be recognized in appropriate cases as part of the potential market for or value of the copyrighted work, and it was primarily because of lost licensing revenue that the Second Circuit agreed with the finding of the district court in American Geophysical that 'the publishers have demonstrated a substantial harm to the value of their copyrights through [Texaco's] copying.'"

It has become more common to pay for permission and much easier to obtain permission. I think we will soom see a system based on a "per use" payment system.

To return to the original question. A set of articles looks like a coursepack. I might feel safe bringing a copy into class for student copying for one semester. To date, the students rights to copy the material have gone unchallenged (especially since they are an amorphous and impovershed population), but any use after the first semester should be paid for. If I lived in the Second or Sixth Circuit, I might even hesitate about the first distribution.

steve

           Steven Melamut
         melamut[_at_]email.unc.edu  
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