Re: thought for the week

On Fri, 30 Jul 1999, Albert Henderson <noblestation[_at_]compuserve.com> wrote:
>
> On Thu, 29 Jul 1999, Lance Purple <lpurple[_at_]netcom.com> wrote:
> > It's very nice for Irving Berlin's grandkids to get money without
> > having to work for it; but do we -really- need to keep the other 90%
> > of works from those years copyrighted, when there is no economic
> > benefit to the author, the publisher, -or- the public? Either <snip>
> > or at least declare it fair use to copy them, until such time as the
> > publisher sees fit to fulfil their end of the copyright bargain.
>
> If the other 90% had no value, no one would want them. Reprints would
> not sell.

     The list has seen a fair bit of discussion recently on fair use and the appropriate scope of copyright protection. Perhaps a real life problem about how to interpret and understand what is infringement and what fair use will be of interest:

     If someone organizing an educational conference/seminar asks whether she can copy and distribute to participants, as part of the course/reference materials, the entire text of an in-copyright article originally published in a magazine that subsequently ceased publication, and if neither the magazine nor the author can now be traced, is it fair use to make and distribute the copies?

     Of the four factors in Section 107:

     Educational use would seem to be a factor favoring fair use; if it were nonprofit, to boot, that would seem more favorable.

     It is not clear whether the second factor, the nature of the work, would have much effect on this question.

     Use of the entire article, instead of just an excerpt, should be a factor against finding fair use.

     If the magazine is defunct, the effect of the proposed use in this situation on the potential market for or value of the article would appear negligible, thus favoring a finding of fair use.

     I am a member of a country dance group that teaches historical dance, and questions of this ilk arise every so often. Not feeling qualified to do so, I do not advise the group officially or unofficially, so I am asking primarily out of curiosity. I would appreciate any reactions or "not-to-be-relied-upon" views either to the list or privately. I might add that the question seems to arise because many members of the group, who come generally from the folk tradition, have a strong sense of the moral authority of author's rights, and, when a very similar situation arose a few years ago, the decision was not to reproduce some interesting articles from the 1930's and 1940's because no one could find anyone to obtain rights from. I think this was over-cautious. Perhaps it was short-sighted of them, but I'm reasonably certain that the thought of trying to find a qualified IP lawyer never crossed their minds, and the thought of paying one several hundred dollars (thereby breaking their limited budget) would have been about as welcome as anthrax.

     A related question concerns copying the music for a particular dance from an old record or cassette that is now either completely untraceable, as above, or merely out of stock for (typically) several years from the musicians who recorded it. With this group, the tendency would be to pay the musicians something nominal to respect their rights, but, again, I am curious whether a cassette of, say, 10 tunes, each from a different out of stock source, with copies given to perhaps 20 to 30 workshop/conference participants, but not otherwise available for sale or distribution, would clearly fall within the ambit of fair use, or perhaps only probably so, or under no circumstances.

     I am aware that the practical answer may well be that there is not enough at issue here to make a claim, let alone an infringement action, worthwhile. But a result based on "you can get away with it" is not very satisfying.

     Thanks for any reactions anyone may care to offer.

     Mike O'Connor
     <mjoconor[_at_]erols.com>