Re: AAP and the CCC

On 24 Feb 1999, Carol S. Milham <csmilham[_at_]prnt-01.prtserv.purdue.edu> wrote:
>
> On Tue, 23 Feb 1999, Leah Gadzikowski <lrgadz01[_at_]gwise.louisville.edu> wrote:
> >
> > Hi Friends -- Just wanted to ask you if you know about threatening
> > letters that are being mailed to organizations on the letterhead of
> > the Copyright Clearance Center?
>
> If you are making more than one copy, for a meeting or anything else,
> then you do need a clearance for it. I'm sure you'll let me know,
> if I'm wrong about that. :) It does get expensive. We do not print
> cartoons, newspaper articles, journal articles, whatever , without a
> clearance. And, yes, these are used for educational purposes and
> handed out in class. We rarely use Fair Use. It's just too gray an
> area. I've had journals and authors give us free use since we use it
> in the classroom. I have also had some charge as much as $9.00 a
> copy.

     As a law student, I am deeply troubled by the prospect of an umbrella licensing entity extracting fees from learning institutions (and students like myself) for copying of academic materials. This seems directly contrary to the constitutional purpose of copyright -- the promotion of knowledge and scholarship.

     Such copying should clearly be construed as a fair use within section 107 of the copyright act. The preamble of s.107 states that reproducing copies for "teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." Moreover, under the four factors listed in s.107 for evaluating fair use, this use should be permissible. The first factor is satisfied as the copying is for "nonprofit educational purposes" -- an explicitly authorized purpose. Under the second factor, the original works are presumably factual and scholarly in nature and therefore are accorded a lesser degree of protection that more creative works. The third factor also weighs in favor of fair use, assuming whole books aren't being copied. In any event, under Sony v. Universal, a copying of the entire work may be permissible, provided the use is noncommercial. The fourth factor of s.107 is the only element of this analysis that may problematic for fair use, since permitting copying would negate the publishers ability to collect license fees. This argument demonstrates the circular nature of the fourth factor though: If the use is fair, no market impairment is possible; but, determining whether the use is fair depends on ascertaining if there's a market impairment. Regardless, the first three factors weigh heavily towards a fair use determination and the fourth is, at worst, unclear.

     Of course, my opinion may be biased.

Jason Vogel
<jasonvogel[_at_]ibm.net> Received on Fri Feb 26 1999 - 18:10:37 GMT