Re: Stan Gardner's Question

["Laurie Urquiaga" <Urquiagal@xxxxxxxxxxxxxxx>]

(NOTE: If the terms of the subscription license are more restrictive than general copyright law, under the law of contracts they'll make this whole discussion moot.  I am assuming the license is silent on this issue.)

The only quibble I have with Marc's analysis (included below) is whether or not students would EVER purchase a subscription to complete an assignment.  To my knowledge, this has never occurred :-)  There might be a possibility that in completing the assignment, a student who is interested in the field might decide the publication is sufficiently valuable to justify a personal subscription, but it is rare enough for students to subscribe to professional journals that I can't even imagine anyone paying a subscription fee just to complete an assignment.  

For print materials, the standard procedure would be for a student to use the library's copy, whether in the general stacks or the reserve collection.  The digital analog would be for the students to log in through the institution's licensed database account and read/print the article themselves.  

The only real market in question, then, is the reprint market.  Is it even possible to obtain reprints (or reprint permissions) for this material, and is there sufficient time to do so?  The CCC, by existing, has created a marketplace that at least some courts consider a legitimate avenue for purchasing reprint licenses (Texaco).  The question is still open whether the very existence of the market trumps the 1976 classroom copying guidelines.  The circuits that tend to focus exclusively on economic factors would probably require licenses, but I'm not sure the Supreme Court would go quite that far.

If I wanted to completely avoid any chance of litigation, I'd advise the professor to give the students a citation to the article and oblige them each to find it individually (and, of course, of some/most of them print a personal copy, it's not the professor's responsibility :-)  But the part of me that is concerned about maintaining the fair use right says that if everyone always ducks for cover, then the right to academic fair use could gradually disappear as a result of abandonment.  If your institution would approve a professor making copies of a particular paper article for class distribution, then I don't think the policy should be changed just because the format of the "original" is digital.

Marc did ask the real question:  is this an ethical/reasonable use for the material?  I have another question:  should/do institutions have an ethical obligation to protect existing fair use rights by exercising them regularly and vigorously?

Laurie

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

urquiagal@xxxxxxxxxxxxxxx


>>> <lindseym@xxxxxxx> 9/12/02 10:02:07 AM >>>
This is responding to Stan Gardner's question.Whether or not the multiple
emails of an entire article for a classroom assignment qualifies as fair
use could be decided either way depending on what federal appellate circuit
you're in. The Second Circuit (ruling in the American Geophysical Union
case) and the Sixth Circuit (ruling in the Michigan Document Services case)
would tend to rule against this as fair use, I think. Let's look at the
four fair use factors: The purpose is educational and nonprofit so this
factor votes FOR fair use. The second factor, nature of the article copied,
we don't know. If it's scientific or technical it votes FOR fair use. If
it's a purely fictional or dramatical article it votes AGAINST fair use.
The third factor is, how much of the original is copied. Because the entire
article was copied, this votes AGAINST fair use. I believe the outcome
would be decided on the final factor, potential effect on the
author/publisher's commercial market for the article. If many classes in
many colleges did the same thing, the market for selling subscriptions
could potentially be affected adversely since students might otherwise
purchase a subscription to complete the assignment.

So I believe the scenario BARELY tips against fair use. But...if the
college is a state institution, it's only an ethical issue because state
institutions are immune from infringement suits.Sovereign Immunity, folks.
For state colleges, it's time to consider what is ethical and reasonable,
not what is legal liability.

Marc Lindsey
Copyright Specialist
Washington State University


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