Re: Academics and coursepacks

Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> Michael Scarpitti <mscarpit[_at_]asnt.org> writes:
> >
> > If the professor is teaching a Shakespeare class, and he has copies
> > of the original folios, from which he makes a new text containing his
> > own emendations, there is no problem with copyright as the original
> > material is in the public domain. If, however, he uses the new Oxford
> > Shakespeare (ed. by Wells?) and simply photocopies (or asks the students
> > to do so; or has Kinko's do so) a play or two for a class of 200, we
> > have a serious problem, regardless of who does the copying. For the
> > prof to refuse to ask permission is outright arrogant thievery. That's
> > why the CCC was established: so those who need to can obtain clearance
> > without suffering unnecessary delays and going through elaborate
> > procedures.
> >
> > The analogy to national parks is all wet; these copyrighted works are
> > hardly "natural" creations: They are the handiwork of men and women who
> > deserve to be compensated for the use of their property.
> >
> ***********
>
> In your example, I understand why Shakespeare might "deserve" to be
> compensated. But what exactly are we compensating the modern publisher
> for?
>
> [Though it may sound like it, this is not a rhetorical question. There
> is no doubt that modern republishers of classic works are providing a
> useful service to society. But I don't think we can decide that
> photocopying one of Shakespeare's plays is "arrogant outright thievery"
> until we figure out exactly what is being stolen].

I have to agree with Professor Lemley, but mostly due to his comment "until we figure out exactly what is being stolen." If there are individually protectable elements, e.g., more than a very few and trivial emendations which are copied in the process (e.g., they may be at the end, rather than within the body of the play, then I think there is a good fair use argument based primarily upon the "amount and substantiality of the portion used" and "the effect of the use upon the potential market for or value of the copyrighted work" (Subsections (3) and (4) of 107). I don't think a good faith copying of only the play itself, esp. from a "complete works" volume, would be arrogant outright thievery in view especially of Subsection 107(4).

Roger Cloud
<roger_cloud[_at_]emu.com> Received on Thu Jul 09 1998 - 17:05:32 GMT