>>> Item number 71, dated 93/08/12 13:50:21 -- ALL
Date: Thu, 12 Aug 1993 13:50:21 CDT
Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET>
Sender: Legal History discussion list <H-LAW@UICVM.BITNET>
From: cfcrw@ecnuxa.bitnet
Subject: Re: a copyright lawyer dis
ELECTRONIC CIRCULATION OF THE NEWS AND OTHER MATERIAL
M. LES BENEDICT
(Dedicated to the public domain. Please do attribute use of
my language or ideas to me.)
Lance Rose has performed a real
service with his analysis of reproducing newspaper or magazine articl
s electronically. H
what is going to become a real problem as electronic mail
technology is more widely used.
However, his explanation of the general meaning of copyright
needs some adjustment, as it implies too narrow a view of
fair use.
First, one does not own one's words or the text one creates.
The author owns the exclusive RIGHT TO PUBLISH--the right to
make and sell copies, the copy-right. That is why the owner
of a book can sell it or lend it or burn it without getting
the permission of the author. It is why one can copy out
extracts for one's own use. That is why one can quote the
words to another in conversation. In understanding fair
use, it is critical to understand that what one has to
justify is the user's PUBLICATION of the author's words,
not his use of the words themselves. Naturally, that
affects how one interprets the four factors that must
determine whether a use is fair.
Second, the purpose of fair use is not primarily to protect
the right of free speech, although the Constitution does
forbid the government from framing or enforcing a copyright
law in a way that would violate free speech. The
doctrine of fair use does provide a way for judges to
reconcile the copyright law, which gives owners of
copyright the power to control the publication of
information, with free speech. The more liberal the
judges' view of free speech, the more liberally they will
interpret fair use. In the 1960s and 1970s the scope of
fair use broadened. Now, with more conservative judges, it
is narrowing again.
However, protection of
free-speech rights was not the reason judges developed the
doctrine, nor is it its main purpose today. Judges created
the doctrine of fair use in order to reconcile the copyright
holder's exclusive right to publish with the
constitutionally mandated purpose of copyright, which the
Constitution expressly states is "to promote
the progress of science and the useful arts" (Art. I, sec.
8). The problem, judges have held, is that if a copyright
is too closely held, it will impede the progress of science
and art. One must be able to copy and quote material in
order to analyze it and build upon it.
Now, how will the four factors be weighed when we copy
news articles or other articles? First of all, remember
that it is actual quotation or such a close paraphrase as
to amount to quotation that infringes the copyright. You
can describe any article freely. If you quote a few words
from it in the course of that description, the second,
third, and fourth factors below comes into play. If it is
really a few words, you will find that the use will almost
certainly be fair.
As to the first factor--the nature of the use: there
can be no doubt that this does constitute publication. In
some cases the purpose is merely informational. In an
interest-group network like H-Law, the use will often be
educational and for research. These are expressly
designated in the Copyright Law as the sorts of uses which
may be fair. The first factor will probably weigh in favor
of the fair use of material circulated electronically for
education and research, especially if no one is making a
profit from it, but the argument is weaker for merely
informational material. One will have to show that even the
circulation of information serves an educational or research
purpose.
The second factor is the nature of the copyrighted
work. If the article is from a newspaper and is valuable
primarily for its information rather than style, insight,
and interpretation, this factor will be a wash or perhaps
even way in favor of the use. Especially if the material is
circulated after it is no longer newsworthy but useful
primarily for research and analysis. If the material is
from a journal or book, or if it is an interpretive,
analytic piece from a newspaper, the factor will weigh
against the use.
The third factor is the substantiality of the use. If
one reproduces the entire article or a substantial part of
it, this will weigh against the use. Quoting a few words
will weigh in favor.
The fourth factor is the affect the user's publication
of the copyright owner's material will have on the market
value of that material. In recent years, the conservative
judges of the federal courts have attended more to this
factor than any other. Unfortunately, as more people join
electronic user networks, it is more likely that electronic
publication will be deemed to affect the market value of the
work adversely. After all, the very purpose of electronic
circulation is to give us the ability to pick and choose
material without having to buy or peruse the whole journal.
This factor is going to weigh against the use quite often,
and recently judges have tended to consider this the most
important factor by far.
Ultimately, this is going to be a real problem. Once
copyright owners begin to focus in on electronic
circulation, arrangements are going to have to be made.
Probably we are going to be limited to describing an article
we have found and providing a citation to an electronic
source for it. Then, if members of the network want, they
will peruse it and copy it for a fee.
Until that time, however, one ought not to worry too
much. Copyright is a civil matter, not a criminal one. It
is between the copyright owner and the user. As long as
copyright owners are not demonstrating concern about
electronic use of their materials, users don't have to worry
either. Until the electronic reproduction of material
becomes so widespread as to justify copyright owners'--in
practice that means publishers'--concern, one can feel safe
in reproducing material for educational and research
purposes. Of course, the more one fits one's use to the
factors, the safer.
>>> Item number 73, dated 93/08/12 17:39:31 -- ALL
Date: Thu, 12 Aug 1993 17:39:31 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Library Reserve, Copyright, and Fair Use Doctrine
Your message on the H-LAW net came at a time when the faculty here are questioning a policy put into place by the Director of the Library. The policy requires the same strict standards that apply to multicopying use for classrooms to apply to single copy materials placed on reserve in the Collge library. I can find no statutory support in Title 17 to support the library director's dictum. Has there been a court decision on point or something in the literature? Thank you.
>>> Item number 76, dated 93/08/12 18:27:28 -- ALL
Date: Thu, 12 Aug 1993 18:27:28 CDT Reply-To: Legal History discussion list <H-LAW@UICVM.BITNET> Sender: Legal History discussion list <H-LAW@UICVM.BITNET> From: cfcrw@ecnuxa.bitnet Subject: Library Reserve, Copyright, and Fair Use Doctrine
Your message on the H-LAW net came at a time when the faculty here are questioning a policy put into place by the Director of the Library. The policy requires the same strict standards that apply to multicopying use for classrooms to apply to single copy materials placed on reserve in the Collge library. I can find no statutory support in Title 17 to support the library director's dictum. Has there been a court decision on point or something in the literature? Thank you.
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