RE: Gardner's Question- BY Arnold Lutzker

["Olga Francois" <ofrancois@xxxxxxxx>]

Date: Thu, 12 Sep 2002 16:17:15 -0400
From: "Arnold Lutzker" <arnie@xxxxxxxxxxx>
Organization: Lutzker & Lutzker LLP
To: <digital-copyright@xxxxxxxxxxxxxx>
References: 1

Here's a quick primer on the copying issue:

1.  You must know what the database license provides.  The terms of the
license will control as a general matter.

2.  From the technical copyright point of view, a copy of the work is
made when it appears on professor's computer.  Sharing the file by email
or other electronic arrangement with students or colleagues constitutes
a public distribution of the work.  Public distribution is an exclusive
right of authors; however, if an exception applies, it may be done.

3.  The three key exceptions are a) fair use - sec. 107; b) library
photocopying - sec. 108, c) educational public performance/display -
sec. 110 (1 and 2).

4.  Re fair use: the photocopying issue has been addressed in a few
cases, most recently at U of  Michigan (infringement found) and earlier
in NYU (case settled on basis of infringement).  In private sector, 2nd
Circuit court in American Geophysical v. Texaco found infringement when
article was copied from circulating journal.  When copyright act was
adopted in 1976, some compromises were reached on guidelines for
educational photocopying, but your example probably goes beyond those
guidelines.  Nevertheless, the proposed use may be covered by fair use,
but I'd need for details to offer an opinion.  And the database license
would have to be considered as part of the analysis and could void the
fair use defense.  (This latter point is at the heart of concern with
UCITA.)

5.  Re library photocopying: the ability to deliver involves one copy to
a scholar for private use, not email multiple copies to class.  Even
though it wasn't part of your example, you probably can't get around
obligations by sec. 108.

6.  Re educational exceptions: this involves public performance and
display in case of "face-to-face teaching" (sec. 110(1)) and
transmissions of that performance to remote locations (sec. 110(2)).
Incidental copying required for sec. 110(2) transmission is covered by
ephemeral recording exception in sec. 112.  None of this directly helps
the proposed use.  The TEACH Act, which amends sec. 110(2), if finally
passed, would permit certain works to be electronically transmitted to
enrolled students engaged in digital distance education.  I've provided
detailed discussion of TEACH Act in prior communications, but the bottom
line is a) act is not enforce yet, b) all the myriad of requirements of
the statue would have to be evaluated, and c) more details would be
needed to give a yes or no.

Hope this helps.
Arnie Lutzker