Re: digital-copyright Digest 12 Sep 2002 15:00:01 -0000 Issue 67

["Laurie Urquiaga" <Urquiagal@xxxxxxxxxxxxxxx>]

>>> Jaylene Sarracino 
Remember, that when in doubt, contacting the publisher or author for permission is the best strategy.

Laurie:
Actually, I don't agree with this statement.  I think each situation requires a certain degree of analysis, and in some cases contacting the publisher is a BAD strategy.  Where there is clearly a valid copyright, and where the proposed use is clearly not fair, then definitely contact the copyright owner.

But if the proposed use is by common understanding a fair one (multiple copies for one-time classroom use is one example), then I don't think it really benefits anyone to ask for permission.  If we (academic institutions) doubt that our actions are fair, and prove that doubt by asking for permission every time, what reason would a court have not to find our use unfair?  Part of the legal analysis is the pattern of practice and expectations within an 'industry', and if the practice is abandoned, then it ceases to be any kind of shield.  For this reason, I almost never request permission for a last-minute or first-time use request.  But ... if the faculty member indicates an intention to use the material repeatedly, then I always ask.  The in-between situations are dealt with on a case-by-case basis.

One real-life example:  I have a new clerk, and because she didn't know all of my guidelines, last month she asked a publisher for permission to include De Toqueville's _Democracy in America_ in our permanent electronic reserve collection.  Now, this book was first published in the mid-1800's, so the original text is clearly public domain.  The translator for the edition in question died in 1895, so even the translation belongs in the public domain.  The publisher responded with a claim of copyright in the work and demanded $100 in royalties for our proposed use.  This is a text that is actually already online as part of Project Gutenberg!  I am still dumbstruck by what I consider an abuse of copyright by this publisher.  We told the publisher 'no thanks.'  We'll just link to the Gutenberg version and be done with it.

The fact is that less than 10% of copyright registrations were ever renewed when renewal was a requirement, so >90% of the works published from, say, 1930-1940 should be in the public domain.  But very few publishers will ever report that a text is public domain if a permissions request is submitted.  They may note that their rights were sold to someone else.  But otherwise, the assumption seems to be that if someone is asking, then the right to deny or charge for permission exists somewhere.  I very much appreciate the publishers who are willing to grant free use for academic purposes, but I am saddened to see that their ranks seem to be diminishing, as publishers who would grant academic uses 4-5 years ago now refer us to the CCC.

>>> Jaylene 
I am curious, about this "educational exemption" that someone referred to.  What is it and where can I find more information about it?   

Laurie:
As noted by other contributors, Educational Fair Use (not really an exemption) is governed by sec. 110 (http://www4.law.cornell.edu/uscode/17/110.html) and we hope soon, the TEACH Act.  The Guidelines for Multiple Copies for Classroom Use (posted by Paul Cary and also found at http://www.utsystem.edu/ogc/intellectualproperty/clasguid.htm as well as other www locations) were included in the legislative record for the 1976 Copyright Act.  Many academic institutions follow them in determining fair use (or even by analogy in determining reserve policies), although the American Library Association has noted that they are unworkable in the context of higher education. ("These minimum standards normally would not be realistic in the University setting. Faculty members needing to exceed these limits for college education should not feel hampered by these guidelines, although they should attempt a "selective and sparing" use of photocopied, copyrighted material." http://www.cni.org/docs/infopols/ALA.html see permissible copying, classroom use about 3/4 of the way down the page.)

As we all well know, fair use is not a bright line analysis with clear answers, but the responsible thing to do is not to shrink from all risk-taking.  Rather, we should choose our risks wisely by evaluating each situation on its own merits and not following cookie-cutter rules that might not be workable in our circumstances.  (Note, I don't think Jaylene was advocating such a course, I just used her comments to launch into a discourse on some of my own 'issues' with copyright practices.  Sorry, Jaylene!)

Laurie


Laureen C. Urquiaga
Assistant Director for Access Services
Law School Copyright Coordinator

urquiagal@xxxxxxxxxxxxxxx