Coursepacks Discussion February-June 1996



>From Jacqueline Kent HLATAM@snycorva.cortland.edu 12 Feb 1996

Court Says Printing of "Course Packs" Does Not Violate Copyright Law

A Federal appeals court Monday ruled that a copy-shop owner did not violate copyright laws when he copied materials for college courses without getting permission from the publishers or paying sufficient royalties.

The U.S. Court of Appeals for the Sixth Circuit ruled that James M. Smith, owner of Michigan Document Services, was protected by the "fair use" provisions of copyright law and had not infringed on the copyrights of the three publishers that sued him in 1992. The court overruled a district judge's decision rendered in 1994.

Mr. Smith's five small copy shops serve the University of Michigan, Eastern Michigan University, and other institutions in the Ann Arbor, Mich., area. The case involved the preparation of "course packs," materials copied from books and journals and packaged for particular courses.

He and others in the photocopy business have said the current process for obtaining permission to reproduce copyrighted materials is time-consuming, cumbersome and expensive, They say the course packs, which are ubiquitous in higher education, allow professors to assign important reading in books and journals that would be too costly for students to purchase individually.

Under the fair-use provisions of copyright law, reproducing copyrighted material is acceptable for "teaching (including multiple copies for classroom use)." The law outlines four factors to be considered in determining whether fair use has been observed: the character of the use, including whether it is for a commercial or non-profit purpose; the nature of the copyrighted work; the length and importance of the portion used in relation to the copyrighted work as a whole; and the effect of its use on the copyrighted work's potential market and value.

The appeals court said that even though Mr. Smith had profited from making the copies, he qualified for fair-use protection because the copies were for educational purposes. The court said Mr. Smith had not exploited the copyrighted material because his fee was not based on the content of the books he copied. He charged by the page, regardless of whether the content was copyrighted.

"The business of producing and selling coursepacks is more properly viewed as the exploitation of professional copying technologies and the inability of academic parties to reproduce materials efficiently, not the exploitation of copyrighted, creative materials, " the appeals court said. "We hold that the Copyright Act does not prohibit professors and students who make copies themselves from using the photoreproduction services of a third party in order to obtain those same copies at less cost."

The court also said that the copyrighted material Mr. Smith had reproduced for course packs were not "excerpted substantially that the coursepacks superseded the original works."

In determining the effect the copies had on the copyrighted works' market and value, the course said that the publishers had not proved that the course packs affected the current or potential market for the original works. The plaintiffs in the case were Free Press, Princeton University Press, and St. Martin's Press.

In a dissenting opinion, Judge David A. Nelson said the publishers had demonstrated the adverse effect that unauthorized copies such as Mr. Smith's had on the value of copyrighted works. He said that if other copy-shop owners were to follow Mr. Smith's lead and stop paying permission fees, "the potential value of the copyrighted works of scholarship published by the plaintiffs would be diminished."

--Mary Geraghty

Background stories from the Chronicle of Higher Education archive:

*"Copy-Shop Owner Loses Suit," 6/22/94

*"Course Packs' and Copyrights," 6/16/93

*"Publishers Win Skirmish in Copyright-Infringement Suit," 4/22/92

*"Publishers Sue to Enforce Copyrights," 3/11/92

Documents:

*Full text of the appeals-court decision

*Full text of Judge Nelson's dissenting opinion

NCC Washington Update 18 Feb 1996

Item #1 Appeals Court Upholds Copying of "Course Packs"

On February 12 the U.S. Court of Appeals for the Sixth Circuit ruled in favor of the Michigan Document Center and against the plaintiffs--Princeton University Press, MacMillan and St. Martin's Press--in Case #94-1778. The three presses had brought a copyright infringement case against the Michigan Document Service, which has five small copy shops that serve the University of Michigan and other institutions in the An Arbor area and which reproduces course packs without securing copyright permissions from the authors or publishers. James Smith, the owner of Michigan Documents Service, decided that the current process for obtaining permission to reproduce copyright permission was prohibitively time-consuming and expensive. He thus prepared course packs for teachers and students without securing permissions operating on the basis that he was engaged in copying for educational purposes which comes under the fair-use provisions of the copyright law. The Appeals Court ruling reversed the decision of the District Court.

Many professors rely on the flexibility and individuality that photocopied course readings or course packs can provide. Professors assigned books, which students purchase. The course pack supplement the assigned books and may include journal articles, material that is difficult to find, newspaper articles, excerpts from books, course notes and syllabi.

Some of the points of special interest in Circuit Judge J. Ryan's opinion include: while the copy shop is a commercial enterprise, the copying of course packs is for educational purposes; since the coursepacks are priced per-page based on copying costs--regardless of the contents--the copy shop is not making a commercial gain off the copyrighted materials; since Congress specifically anticipated the "multiple copies" for classroom teaching, the copy center making use of professional copying technologies to assist the professors and students in an activity which faculty and students are permitted to undertake but which they can not do as economically and efficiently as the copy center; significant weight is placed on the fact that the professors signed statements that they would not have assigned the original works, even if copied excerpts were not available; and students who used the course packs were not a market for the purchase of original works.

Judge Ryan also pointed out: that the plaintiffs' reliance on the Classroom Guidelines established in 1976 by CONTU, the Commission on New Technological Uses of Copyrighted Works, "is misplaced;" that classroom use of the course packs promotes learning without undue harm to the incentives to create original works; that course packs are particularly helpful in interdisciplinary courses that draw small portions from a number of disciplines; and that the record contains no evidence that the market of the original work was affected by the use of excerpts in course packs.

After a lengthy discussion of the four factors affecting fair use that are in Section 107 of the copyright law, Judge Ryan's ruling concluded with an additional consideration. The ruling states: "More than one hundred authors declared on record that they write for professional and personal reasons such as making a contribution to the discipline, providing an opportunity for colleagues to evaluate and critique the author's ideas and theories, enhancing the authors' professional reputation, and improved career opportunities. These declarants stated that their primary purpose in writing is not for monetary compensation and that they advocate wide dissemination of excerpts from their work via course packs without imposition of permission fees. The fact that incentives for producing higher education materials may not revolve around monetary compensation is highly relevant. Copyright law seeks to encourage the use of works to the greatest extent possible without creating undue disincentives to the creation of new works."

Responses:

>From Jo Freeman JFRBC@cunyvm.cuny.edu 20 Feb 1996

This may be "Good News" to those of you who teach. But to those of is who write articles and edit anthologies, it is not. You get paid for teaching; why shouldn't I get paid for producing some of the materials you are paid to teach? The creation of cheap course packs, whose authors are not paid for the use of their work, undermines the market for edited volumes of those same which are professionally edited and published. In academia, faculty are paid indirectly for publishing, through jobs, promotions, outside lecturing opportunities, and grants. As an academic exile, I get none of this. I never charged much for using my articles in course packs, but the fact that I could get paid for these small things made me feel my work had value, and at least required that users inform me when they were using my articles. (Though I know not all of them did.) Now there will not even be these small incentives to write for scholarly journals. Fair use should be restricted to putting a few copies on library reserve; not producing a copy for every student's personal use. The copier gets paid to copy; the professors get paid to teach. What does the writer get paid?

>From Monica McCormick monica.mccormick@ucop.edu 21 February 1996

I'm writing to second Jo Freeman's concern about free copying of "course pack" materials, albeit from a different perspective. As an editor for a scholarly press, I have an obvious interest in protecting our copyright and that of our authors. Publishers of scholarly materials are not in this business for profit, and we add value to scholarship through or review, editing, production and marketing. That our output should be available for the cost of Xeroxing seems unreasonable.

I am also concerned about the consequences of this decision for future scholarship, particularly edited collections. Such books can be difficult to sell, for a variety of reasons. Scholarly publishers are therefore very selective about these books, and we're going to have to be more so in the wake of this decision. This is a pity, since a good deal of cutting-edge work first sees print in these collections. When we can't afford to publish them, you won't be able to assign them (or get your own work published in them).

I don't intend to sound gloomy-I'm convinced that really good work will continue to have a market-but wish only to alert H-Women to another perspective on this question.

>From Moira J. Maguire MM5349A@american.edu 21 February 1996

I can appreciate Jo Freeman's concerns about the recent fair use ruling, but I have to (respectfully) disagree with her viewpoint. I have been on both ends of the course packet issue: as a student I recall paying over $60 for a course packet, in addition to the six or seven books that were also required. On the inside cover of the packet was noted the fact that the actual cost of copying was less than $10; the remaining $50 plus was copyright fees. I am now teaching and face the problem of giving my students small readings that will give them a wide variety of perspectives, in addition to the required readings. With the cost of textbooks and other reading materials rising, we face the problem of either making some of these copyrighted materials less costly or not assigning them at all. I was always under the impression that our scholarly endeavors, while obviously enhancing our "marketability" and attractiveness as professors, is also intended to further knowledge in various fields. What is the point of writing if no one reads what we write because the cost of reproducing is prohibitive.

On a more practical note, it is a well-known fact that students (and others) pretty much copy whatever they want anyway. If we place materials on reserve instead of making them available in course packets, there is no guarantee that the students won't go and copy the material for themselves. Either way, the material gets used and the authors are not compensated for it. It seems to me that the question at hand is whether we believe that the furtherance of scholarly knowledge supersedes the minimal financial gains offered by copy-righted material. Finally, I would also like to point out that many of us who assign course packets are also, like Jo Freeman, working to publish the articles and other materials that are equally vulnerable to the fair use laws.

>From Theresa Kaminski tkaminsk@worf.uwsp.edu 23 February 1996

This is an issue I really grappled with as I was preparing for this semester. I created a new course on women's rights and feminism and had a difficult time finding books. A reader would have been ideal, but I couldn't find one. The best collection of sources, Up From the Pedestal, is our of print. I ultimately decided against creating my own course packet, and the reasons are varied. This is a small town that does not have any great copy shops, I was uncomfortable about the copyright issue, and I worried about the expense of going through one of the companies that puts such packets together. (I am supposed to keep required book purchase down to $30 per course.) So I opted for placing items (mostly copies of primary sources) on Reserve. I imagine that most of my students photocopy the reserve items, but I can't find an ideal way out of the situation.

I can see all sides of this issue. But what is extremely clear is the fact that we all teach specialty courses for which we cannot locate the "perfect" text or reader. Any yet it seems that an awful lot of books are published each year.

>From Amelia Carr acarr@alleg.edu 26 February 1996

I was stunned at Theresa Kaminski's comment that she was supposed to keep book purchases down to $30 per course. Is that really possible? Does everybody do it? I don't know of a single art history text book that costs under $50. This may not be an appropriate topic for the list, but I'd like to hear more.

>From Vera M. Britto fiatlux@umich.edu 26 February 1996

I have a different point of view regarding objections to fair use since I believe a college education should be a right to all citizens (whether they can afford it or not), just as K-12 is presently in this country. As long as the access to college is largely determined by a large sum of money (however one acquires it)-this will discriminate against many people who need the education but cannot come up with the varied resources needed to get access to an education. (And this certainly applies to non-privileged women, since women still on an average earn less than men, face all kinds of work and education discrimination and sexual harassment, face serious problems getting health care, etc. It applies to minorities for pretty much the same reasons as well and other groups.)

So making *students* (especially poor ones) pay a very high cost for books, coursepacks, computers, is part of an elitist education system-and it is part of the larger problem of who should pay for education and how this determines access to knowledge and skills and the possibility for professional and academic privilege. In this tremendously militaristic society where trillions of dollars are spent on arms, we already have a slogan that says "Food-Not Bombs"-maybe we can add a variation saying: "Books-Not Bombs."

>From Timothy Scherman utscherm@uxa.ecn.bgu.edu 26 February 1996

I cheered aloud when I read of the recent ruling regarding coursepacks, and I must say I groaned aloud when I read Jo Freeman's question regarding what sort of "pay" we should expect from academic writing. The pay, it seems tome, is political; as published, our thoughts reach farther and more perdurably to more people that we could possibly expect from teaching a course over a number of years or standing at a street corner with a megaphone. I for one have never misled a student to go into this for money.

Publishers, of course, have a gripe. Their costs rise with a much wider economic tide. As the prices they must charge for academic books and journals to stay afloat gets more and more out of proportion, they are caught in a real bind, and we are with them. Still, I've never seen the figures on precisely how much publishers rely on copyright fees paid through coursepacks--or how much these fees can even make a dent in the enormous costs of putting out such beautiful books as we see every year on display at our conventions. Nowhere have I read or seen a such for less expensive production.

Still, asking publishers to present a more tawdry product, asking authors to accept nothing for their work, asking our students and colleagues to pay exorbitant prices for academic books and journals--none of these is the right solution, Academic books are commercially produced, but their value will never be "paid for" in the free market. In a letter to James Madison December 20, 1787, Jefferson gives us a hint where we should be getting support (and not disdain) for the shortfall:

              And say, finally, whether peace is best preserved
              by giving energy to the
              government or information to the people. This last
              is the most certain, and the most 
              legitimate engine of the government. Educate
              and inform the whole mass of the people.

We cannot allow government to step away from this duty. To cite copyright law in this debate is to buy into a vision of government where no such duty exists, in the government or in ourselves.

>From Don Palm donpalm@mail.utexas.edu 27 Feb 1996

A couple of points relating to several disconnected posts...

I admire Ms. Freeman's effort to continue her intellectual work separate from (if not independent of) the limits and seductions of academic life. Shouldn't we encourage folks to work outside this professionalized world? Surely we all see problems related to the loss of "public intellectuals"

And beyond that, although I do agree that shrinking support for university presses will be a disaster in this world of changing media and shrinking markets for academic monographs, isn't it problematic to argue that our publishers should rely on government support? How far is that from opening ourselves to issues of government sanctions (as evidenced by the recent growth of Jesse Helms' power)? Shouldn't we protect the rights (and viability) of small presses?

One of the interesting traits of the court decision is willingness to grant a profit to the copying companies (Kinkos, or whomever), from whom none of the creative activity (other than the capital and work involved in photocopying) has come. Why has this court chosen to allow the copyright infringement privileges to rest with such businesses? Wouldn't it make more sense to direct schools to provide such services if their courses require them? Or, more usefully for the creative forces, wouldn't it be better for publishers to make general permissions arrangements for their publications, as music companies have? Perhaps this a hopelessly ignorant analogy (I've only experience book publishing, not music), but the point is to give students good, new materials, and to reward authors and publishers for providing useful, stimulating, challenging ideas, not to free the copy companies--yes?

This is a fascinating discussion, from which I have learned a lot. Thanks.

>From Genevieve G McBride gmcbride@csd.uvm.edu

Re copyrights vs. copy shops, I have found that neither applies much after the first couple of courses in which my book was assigned...because, in a point I haven't seen raised here, so many used copies are recirculated--meaning campus bookstores continue to make money on the book, not me. After all, I only made a buck per $19.95 book bought new, anyway; royalties in academic press publishing are laughable to "professional"/commercial writers. Having been the latter--like Jo Freeman--for decades, I expected at least a 15 percent royalty fee. However, I had already overcome my first shock in this field, when I discovered that scholarly journals did not pay ANYthing for articles! One way I found to pay for my books in grad school, BTW, was to take the same story I had published in a historical journal, recast it in journalistic form, and free-lance it to newspapers and/or popular magazines for a few hundred dollars. (After I found that, if I don't do it, some other free-lancer would do it without attribution to me.) To this day, I find myself having to set aside research, costing me a few months or years toward promotion to full prof, for free-lancing to pay the bills. However, I feel fortunate that I can peddle my work both ways.

I empathize with both sides, having been on a few. My academic colleagues and I may live (through remedial courses and endless committee meetings) for the opportunity to write. But for my free-lancing colleagues, writing is their living...if their lucky enough not to have to teach, too, but without job security or benefits. Either way, of course, academe wins.

But the biggest winners, being the ones who make the biggest bucks on this issue, will be--once again--not the writers but the lawyers...

>From Ginger Frost gfrost@nslsilus.org 28 February 1996

I have followed this discussion and will put in a word for professors here. I have used course packets and I have tried diligently to get the permissions well ahead of time. No matter how much time I leave, many publishers either deny permission altogether or take 6-8 mos. to get back to me. By that time, the class has started and is sometimes half over! If publishers want professors/students to pay royalties, maybe they should make it a little easier. I doubt many of us would mind going through all this folderol if we weren't put through so much run-around to do it.

>From Timothy Scherman utscherm@uxa.ecn.bgu.edu 28 February 1996

(In response to Don Palm's posting)

Re: Publishers relying on gov't support: In talking to several colleagues about this issue (and sharing with one the Jefferson quotation), I find worries about the power of government over those they subsidy to be the most common. Still, without money ourselves, how are we to "protect" small presses? If our Scylla is Jesse Helms, our Charybdis is the "free" market. Perhaps I am too trusting of the system, but at least government can AT TIMES be influenced with votes; the market demands what the profession isn't designed to accumulate.

Re: Wouldn't it make more sense to direct schools to provide such services?

This is an excellent idea. I know my own university bookstore charges for (and profits from) such services, but again, the bookstore (Beck's) is part of a larger Chicago chain. If the university were to provide such services, charging costs only, I think more of both academic and economic justice would be served.

>From Karen K. Avery SMND@grove.iup.edu 28 February 1996

In partial response to Ms. McBride's post: Unfortunately, I have not had the opportunity to read the Supreme Court opinion so I do not know why and by what logic the high Court rendered such a decision. But, as an attorney and a grad student in U.S. history, I respond to the statement that "the lawyers" are the ones who will be making big bucks out of this decision. Now that the court has spoken on this issue, the only ones who will assuredly not be making any money on copies are lawyers. The issue is now settled.

Perhaps I am overreacting to your statement due to the stress those of us in the legal trenches are experiencing as our nation moves farther away from the protections of personal liberties that had marked the last several decades of Constitutional law. But, as a public defender and as a woman who refuses to give in to the "good ol' boys" slip-shod approach to prosecution and defense of the criminally accused and who daily faces racism, sexism and classism in one of its ugliest forms, I would like to remind folks that not all lawyers are money grubbers. Many of us are standing alone against oppression to protect the constitutional rights of all of us. It would really be nice to hear some encouraging rather than disparaging remarks every so often.

>From Louise S. Robbins LROBBINS@macc.wisc.edu 29 February 1996

It's interesting to read the copyright thread. I'd like to put the controversy into perspective of scholarly publishing, the promotion and tenure process, and the support of university (and other) libraries.

Those of us in academia (myself included) write for promotion and tenure. Although quality is (at least ideally) rewarded, a certain quantity is expected. These creations are usually given away--in the humanities; people in the sciences frequently have to PAY a page fee to be published. The demand for places to publish has been such that journals "twig," or create new journals dealing with a subset of the area they dealt with beforehand. Thus the number of journals proliferates as the market for each journal dwindles. Libraries used to try to add journals as the universe of journals grew. Journals and other serial publications now constitute between 1/2 and 2/3 of many libraries' budgets. As the costs of the journals go up--and they have been going up 9-24% per year lately--the larger the bite they take out of those budgets.

Who buys university press books? Libraries, and mostly university libraries. I think you'll find that the average press run for a university book is between 1500 and 2500 (this is a figure that's a couple of years old from a meeting of University Presses with librarians at a conference. That is down considerably from the days when libraries had lots of money. Many of the journals that they--and other publishers--produce have smaller and smaller circulations because the budgets of the university libraries cannot sustain the level of purchases that have to be made to continue to collect an ever-growing and ever-more-costly universe of journals. My favorite example of a periodical is one published by MCB University Press of London (with U.S. offices in Birmingham, Alabama.) A few years ago--maybe 6--it cost $110 or so. When it went to $250 the next year our library cut it. This periodical now costs more than $2000 per year. Its subject matter? It's in library and information science, not exactly the area with the most departments in universities or the largest number of productive scholars (there are only about 60 LIS programs in North America.)

AND then, we scholars buy back our creation from the publisher to whom we give it! When we want to assign it, we sometimes would like to make course packets for the convenience of our students, and even if we are willing to pay a fee, we have to jump through so many hoops or wait so long for a response that the course is over before we get permission. What if we retained copyright when we agreed to submit an article?

Maybe what we need to do--among other things--is look at the system of promotion and tenure. Maybe we need to give our products only to those publishers (and university presses seem to me to be among the more cooperative and reasonably priced) who will respond rapidly to requests for permission, or work with our universities to establish mechanisms for printing course packs legally.

Funny how technology changes everything. Some of us read reserve materials in the libraries because there were no copying machines. Now in an electronic age, the whole concept of fair use is being challenged. I'd suggest you stay tuned to see if all the rules are going to--or have--been changed in the electronic environment.

>From Paul Halsall Halsall@murray.fordham.edu 29 February 1996

It is all very well to argue that copyright should be approved before creating course packets. Some of us simply don't have the time. I mean this quite literally: I have been teaching as an adjunct for 6 years, and in at least 10 of the semesters involved I have had less than a week's confirmation that I would be teaching. This semester, I ended up teaching two classes; one with 72 hours notice, the other with 22 hours.

I do not use course packets with all courses, but with some I do. The legal situation at the moment seems to be that there is no need to get copyright clearance for course packet [or, I presume, limited access web sites for classes.]

I think this bears on the recent copyright document issue on various H-Net lists about "multimedia presentations". Who was doing the negotiating? The Michigan case has been well known for some time; and as the Appeals court found, seems to be well based within the fair use language of the law. The legal decision has basically shredded the basis of that discussion document.

People should also keep in mind some copyright basics: by doing so they will find that many items can be used quite legally even under strictest definitions.

_All publications from before 1920 are now in the public domain. It does matter if there are later editions. For instance the 1911 Ency. Brittanica, many Loeb's, and a large number of prepared sourcebooks from before 1920 are all public domain [as are maps and photographs within them]. This applies to the US. Law in other countries may differ.

-Until recently copyright was only for 28 years. If it was renewed [which had to be done in the 18th year], copyright could extend to 75 years in the US. Many books and journals simply did not renew copyright, and so there is a fair chance that items before 1958 are now out of copyright [you need to check though. The Library of Congress keeps a register of copyright renewals, as does the NY Public Library, and I presume other major libraries. Large publishers were more careful about this than others.]

-Publishers sometimes reissued books, say in 1975, with words such as "copyright 1925" and no other statement. Such books are likely to be in the public domain [and in fact the omission of a copyright claim is grounds for defending any use.] Since I have been compiling an Internet Medieval Sourcebook of copyright-free [or copy permitted] material [http://www.fordham.edu/halsall/sbook.html]

I have been looking at this closely. There is little doubt in my mind that many publishers claim, or apparently claim, copyright over public domain material [one way to do this, in a later edition sourcebook, is to continue to thank another publisher for copy permission which might not have been needed two decades ago, but that is required now].

-If you are dealing with translations, modern versions often are copyrighted, but there were often 19th century versions which you can use. Sometimes the language is archaic, but thanks to "search and replace" it is quite possible to modernize older translations for class use. This is not exactly the best scholarship, but it will often do perfectly well.

These comments apply to people teaching courses that cover older material, of course. Modern American and European material is more likely to be copyrighted.

-The moral situation, as a number of posters have indicated, is mixed on these issues, but, unless the Supreme Court overturns the Michigan decision, the legal situation does not seem to be mixed. You can make all the course packets you want.

PS. Does somebody have the full text of the Appeals court decision. If so, it seems to be something worth posting. And, as I understand it, court decisions [like most government publications in the US] are public domain.

>From Jenny Lloyd jlloyd@acspr1.acs.brockport.edu 4 March 1996

I to have had problems with course packets. I teach a course on European women's history from the Middle Ages to the present, for which there is no one suitable document collection (that I can find, anyway). I tried having a course packet through the college bookstore, but however much lead time I gave it was a disaster, with half the permissions never arriving, and others to my mind unreasonably excused. Penguin seems to give blanket refusal to everything. Eventually the bookstore gave up doing packets. Now I have a series of handouts I have made myself, mostly using less than a page of any one source, which I hope is in the copyright compliance (of course I credit the sources). However, this is time-consuming for me, since I have to make sure they are copied every time, and I would like to have them conveniently available to students in a book. There seems to be no way of doing this that is not extremely time-consuming for me. I would be happy to pay royalties if the procedure was not so cumbersome.

So far in my experience it makes it impossible to know whether you will have the material you want for the students. I would also gladly assign a suitable collection if I could find one that fits my needs, but suspect there would be too few sales for a publisher to being one out. I cannot ask my students to buy books when they will only use a few pages.

>From Genevieve G McBride gmcbride@csd.uwm.edu 04 March 1996

Copyright: Correction

In response to Karen K. Avery's post..which was in response to my original post:

Point of order, lest others on this list also have deleted past the initial post on this decision, forwarded from the Chronicle of Higher Education. The ruling on this case was made by the U.S. Court of Appeals for the Sixth Circuit. I don't have a law degree, but what I learned in journalism school and history classes was that this means that the issue might not be settled. (For that matter, some folks--some of them on the high court--seem to still be unsettled by Roe v. Wade...)BTW, our campus counsel, who does have a law degree, advises us to follow previous procedures unless and until an interpretation of the impact outside of Michigan is forthcoming.

BTW2, the initial post directed interested persons to the full text of the decision, the dissenting opinion, etc...on the Chronicle's website.

Re: Disparaging remarks about attorneys:

Please forgive me for giving personal offense. It was unintended and clearly undeserved in your case. And it was unfair of me to project personal experiences with lesser--and clearly more costly--of your colleagues onto a profession; although I have been subjected to gender and class bias in and by the (civil) court system and some lawyers of both genders, I finally did benefit from an able defense of one lawyer of the male gender. So, as you suggest, sweeping generalizations of any sort are hardly useful to us.

And as you also suggest, only some lawyers will profit from this copyright case, and--in a rather wonderful irony to ponder--they most probably will not do so from making copies, as I know well from the same expensive experiences that the courts charge far more for copies than Kinko's.

Re: New Technology and Copyright Issues 06 March 1996

Editor's Note: The following comment brings up the issue of copyright and new technology. I will be teaching course next fall using course webpages in place of syllabi and course packets. However, this technological advance does not end the controversy over copyright. H-Net has a copyright committee that sets policy for the organization. Cheryl and I will post relevant policies released from that committee. Kriste Lindenmeyer

>From Michelle Marie Branigan braniga@indiana.edu 06 March 1996

I have decided that in the future when faced with Xeroxed article difficulties and obstacles that I will try to find the time to scan the articles into the computer and then have the students copy them to disk. It presents an initial investment in time, but as scanners become more reliable it will work even better.

From: 06 March 1996

The Authors Guild

American Society of Journalists and Authors (ASJA)

Text and Academic Authors Association(TAAA)

The Authors Registry

For Immediate Release

Authors' Groups Back Publishers in Fighting Ruling That 'Coursepack" Photocopying Needs No Permission

In a rare instance of partnership, authors and publishers, who frequently face off in angry disputes about who owns what, this week joined forces to call for an overturn of a federal court decision permitting unrestricted photocopying of portions of books and articles for university "coursepacks" without payment to copyright holders.

Authors' organizations representing tens of thousands of writers filed a "friend of the court" brief in support of publishers seeking a rehearing of what the authors termed a "dangerous" copyright decision handed down February 12 by the U.S. Court of Appeals for the Sixth Circuit. The authors took particular issue with the court's finding, in a 2-1 decision, that the standard practice of paying for licenses to make such photocopies is not an incentive for authors to write.

The organizations involved are three national writers' groups--the Authors Guild, the American Society of Journalists and Authors (ASJA), and the Text and Academic authors Association(TAAA)--and the Authors Registry, the new royalty collection and licensing agency endorsed by more than 30 writers' groups and 95 literary agencies.

At issue is a case in which Princeton University Press, Macmillan and St. Martin's Press sued Michigan Document Services, a copyshop specializing in coursepacks--professors' custom-ordered anthologies of excerpts from published works, which are increasingly taking the place of textbooks for college courses. Copyshops regularly obtain permissions and pay fees to reproduce copyrighted works, but the Michigan shop boasted to the professors that it would make coursepacks with "No Delays Waiting For Permission." The appeals court majority, reversing a lower court ruling, declared the permissionless photocopying legal.

The "friend of the court" brief, prepared by the Authors Guild attorneys, assured the court that compensation is indeed an incentive to writers, and that depriving publishers of their fair share of permission income would also hurt the writers by leading to fewer published works.

The authors' groups pointed to their long efforts to stop uncompensated photocopying and asked the court, "What else could account for the immediate impact of the Authors Registry, in which over 50,000 authors are registered for collection, accounting and payment of royalties and fees?"

A decision on rehearing the case is expected in March.

>From Paul Halsall Halsall@murray.fordham.edu 07 March 1996

Will the AAUP file a "friend of the court" brief in support of the Michigan copyshop?

It seems to me that the great majority of American faculty favour the creation of coursepackets, and so our professional organizations should be active in supporting us in this area.

As it stands, I think the Michigan copyshop has a fair chance of success--the plainest reading of the law is in its favour.


Editor's Note: Thanks to everybody who contributed to this very interesting thread on copyright. The discussion will be posted on the H-Women webpage and submitted to a new project entitled "The Best of H-Net". As editor, I think it is time to terminate this discussion until something new occurs in the courts. If you want to pursue the topic with the AAUP I suggest sending a comment or query to AAUP's unmoderated email list. To subscribe send the following one-line message to:

majordomo@igc.apc.org

[leave the subject line blank]

on the text screen type:

subscribe aaup-general

Keep in mind your message will not be screened by an editor.

KL

>From Jo Freeman JFRBC@cunyyvm.cuny.edu 13 March 1996

Of Coursepacks and Copyright

By Jo Freeman, Ph.D., J.D.

On February 12 the Sixth Circuit Court of Appeals delivered it's decision that copyrighted materials for coursepacks did not require permission from or payment to the copy right holder. Since then there have bee numerous comments on the Internet generally in favor of this decision. As one who is a scholar, writer, editor and attorney, but not a professor, I think it is a travesty. If this ruling were to be widely followed it would encourage exploitation and discourage production of the very materials which are most useful in the classroom. In reading the other comments I have noticed numerous misconceptions and misunderstanding of both the facts and the law. Therefore I will first review the case, based on reading the District and Circuit court decisions and some of the briefs, before explaining why the short term benefits of free copying will lead to the long term loss of publication opportunities for valuable work.

The Facts

The plaintiffs are Princeton University Press, MacMillan, Inc. and St. Martin's Press, one non-profit and two for-profit publishers. They own the copyright to numerous books and articles which they have published and which are often used in college classes. The defendants are a business, Michigan Documents Services (MDS), and its owner, James M. Smith. MDS makes money by copying other people's work that has been selected by professors for their courses and selling it to students at fourteen schools. The coursepacks MDS prepares are mini-readers, differing from the ones published by the plaintiffs only in that their buyers are students for specific courses; the coursepacks are not marketed widely nor are they generally available.

This case concerns three coursepacks sold in 1992 by MDS which contained six excerpts photocopied from books owned by the three plaintiffs without asking permission or paying any fees. The selections ranged from 17 to 95 pages and constituted from five to thirty percent of the original works. These were: Farewell to the Party of Lincoln: Black Politics in the Age of FDR, by Nancy Weiss (95 pages-30%); Public Opinion, by Walter Lippman (45 pages-18%); Political Ideology: Why the American Common Man Believes What He Does, by Robert Lane (78 pages-16%); Social Psychology, by Roger Brown (52 pages-8 %); The Nature of Human Values, by Milton Rokeach (77 pages-18%); and Where The Domino Fell: America and Vietnam 1945-1990, by James Olson and Randy Roberts (17 pages-5%).

Although the substance of the case concerned the nature of "fair use" permitted by copyright law, underlying the legal analysis is a dispute about money and competition. During the "discovery" phase of the lawsuit MDS admitted that it has been reproducing copyrighted materials without permission or payment for over 19 years. In 1992 alone it made coursepacks for over a thousand classes. That year it reproduced parts of 2,900 copyrighted works for one school alone (U. Mich.) for one semester. Smith "guessed" that he sells multiple copies of ten to fifteen thousand different excerpts each semester. MDS is not the only copy shop in the area serving these schools, but the others pay permissions fees. Thus MDS has a competitive advantage because its costs are lower.

Since the fees charged are generally modest, the amounts lost by a publisher on any given work is not much. But the total is substantial, as is the competitive impact. In 1991 and 1992, Princeton U. Press received $60,000(for sixteen months) from permissions fees, St. Martins $125,000(for one fiscal year), and MacMillan $478,415(for twenty months). The amounts also made a difference for the copyshops. In 1992 both Kinko's and MDS bid on 550 copies of a U. Michigan History coursepack which used 17 pages from the Olson and Roberts book. The Kinko's price included 80 cents per copy for St. Martins Press; MDS got the job. MDS regularly used their "no permissions asked" policy to increase business. It sent out thousands of letters to professors advertising "No Delays Waiting For Permission" and "No Excessive Royalty Demands".

The Law

After the case was filed in the U.S. District Court for the Eastern District of Michigan both sides made motions for summary judgment. Such a motion asks the court to decide a case without trial, on the basis of the law alone. Since every case has some facts, the court assumes as true the facts on which both sides agree; or if there is a disagreement, the facts of the other side. It must view "the evidence in the light most favorable to the party against whom summary judgment has been granted". Only if there is "no genuine issue of material fact" can a decision be made without a trial. The District Court decided in favor of the publishers. It not only found that their copyrights had been infringed but that this action was "willful". The court issued an injunction prohibiting any further copying without permission, and granted the plaintiffs $30,000 in statutory damages, and $300,000 in attorneys fees. 855 F. Supp. 905, 869 F. Supp. 521, (EDNY 1994).

The defendants appealed and the Sixth Circuit reversed. Two judges reversed on all points. A third decided that infringement had occurred, but was not willful. 74 F.3d 1512 (6th Cir. 1996).

Copyright is in the U.S. Constitution, which gives Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. 1, Sec. 8). The purpose of copyright is to provide an incentive to creative activity by granting the creator a monopoly on its use for a limited period. This "Right" can be sold or licensed, so the copyright holder is not always the creator. The extent and nature of this "Right" can also be altered by law, and Congress regularly revises and amends the federal copyright law. The last time it debated and passed a new law was twenty years ago. This case required all four judges at both levels to interpret Section 107 of the 1976 copyright law, which provides that

                  the fair use of a copyrighted work, including
                  such use by reproduction of copies or phonorecords 
                  or by any other means specified by that 
                  section, for purposes such as criticism, 
                  comment, news reporting, teaching (including
                  multiple copies for classroom use),
                  scholarship, or research, is not an 
                  infringement of copyright.

                  In determining whether the use made of a work in
                  any particular case is a fair use the factors to be
                  considered shall include--(1)the purpose and
                  character of the use, including whether such use is of a
                  commercial nature or is for nonprofit educational
                  purposes; (2)the nature of the copyrighted work; (3)the
                  amount and substantiality of the portion used in
                  relation to the copyrighted work as a whole; and (4)the
                  effect of the use upon the potential market for or value
                  of the copyrighted work.

In interpreting this law the different courts emphasized different aspects of the case. The District court was acutely aware that MDS profited from copying the creative works of others, while adding little or nothing that was new. Judge Barbara K. Hackett wrote that MDS was "taking the property of another without right or permission, using that property for personal gain. There simply is no excuse for this conduct." In looking at the four factors in Sec. 107 she gave particular weight to "amount and substantiality of the excerpts copied" and the impact of MDS' use upon the potential market. Judge Hackett noted that while the actual fees lost for those coursepacks was small, if the use of free copyright became widespread "there would be significant loss of revenues."

Circuit Court Judges James L. Ryan and Monroe G. McKay looked at the facts differently. They gave greater weight to the fact that the coursepacks are "multiple copies for classroom use" and thus "an integral part of teaching." They found that the profit came from providing materials more efficiently than students could otherwise obtain them rather than using copyrighted materials. "The business of producing and selling coursepacks is more properly viewed as the exploitation of professional copying technologies and the inability of academic parties to reproduce printed materials efficiently, not the exploitation of copyrighted, creative materials." The court further held "there is no basis for us to conclude that the portions extracted from the copyrighted works were so substantial that the resulting coursepacks superseded the originals" because the faculty who assigned the excerpts stated on the record that they would not otherwise assign the entire book. Market impact was discounted because "[E]vidence of lost permission fees does not bear on market effect"; coursepacks do not damage the market for the original work.

In reaching this conclusion the court was particularly impressed by declarations from more than one hundred authors that they do not write for monetary compensation which are "likely to amount to a mere pittance for individual authors."

                [T]hey write for professional and personal
                reasons such as making a contribution to the discipline, 
                providing an opportunity for colleagues to evaluate and
                critique the authors' ideas and theories, enhancing the
                authors' professional reputations, and improving career
                opportunities.

This decision is more of an opening gauntlet than a final say. The decision is only binding in the Sixth Circuit, which covers the states of Michigan, Ohio, Kentucky and Tennessee. It does not overrule the 1991 decision by the U.S. District Court for the Southern District of New York which held that Kinko's had infringed on several publishers' copyrights when it produces coursepacks. Basic Books v. Kinko's Graphics Corp, 758 F. Supp 1522 (SDNY 1991). The Kinko's decision was not appealed, but on February 26 the publishers in the MDS case moved for a rehearing en banc (by the entire Sixth Circuit court). With so much at stake the losing party will probably ask the Supreme Court to grant certiorari.

The Problem

There is an inherent conflict in the needs of instructors who want a wide choice in selecting materials for their classes that is readily available and the writers and publishers who own the material they want to use. But it is a conflict that is not solved by allowing copy shops to profit by mass duplication of copyrighted material without permission or payment, even when the end users are students. The profits made by publishers and writers are used to produce more original material which can then be used to advance knowledge and education. The profits made by copyshops are not used toward this end. While mass duplication without the cost of getting permission or paying fees may lower the cost to the student user, it is a short term gain which undermines the long term production of educational materials.

To understand why a short term gain leads to a long term loss, one has to look at the real world of publishing and writing for classroom use, of which professors are only a part. Whether profit or non-profit, publishers must have enough money coming in to pay their staff, printers, suppliers and landlords, none of which (except possibly the staff) give them an "educational discount". Marketing also costs money; especially the free books to faculty. There is a fixed cost to produce any book, which must be covered by sales or subsidies, that ranges from $30,000 to half a million dollars. The less money coming in for each book,the less is available for new ones. When priced at $30, a book for the college market must sell between three and four thousand copies to break even. If copyshops could freely copy as much as 30 percent of a book, as MDS did, publishers will think twice before publishing books which might not be used in their entirety. They will also think again about publishing books for small markets, or books on new topics for which the potential market is unknown. As it is, marginal books are often priced higher because the need to meet costs early before the market peters out. why should a publisher invest money in a book for a small or unknown market if as much as 30 percent can be copied for course use without permission? Or even five percent?

The books in the Sixth Circuit case were not collections, but this type in particular will suffer from the court's decision. Publishers already disfavor anthologies, in part because of fees paid to contributors or to other publishers for permission to reprint. How high these fees are and how much they are shared between editor and publisher varies. Publishers also incur production costs for typesetting, printing, etc. If copyshops can reprint the same articles without paying these fees or costs, they have a competitive advantage which will discourage the publication of such books. Of course, the college text publishers might respond by following the logic of Judge Ryan and McKay and simply not pay any more permission fees(or perhaps even royalties).

Few collections fit a course so well that many faculty want to assign the whole book. Generally a professor uses the one that "best fits" her needs and supplements it as necessary. If instead she can use 30 percent of one collection and 30 percent of two others, or even smaller portions of several, she can effectively create an entire text without paying a single fee to the creators. Coursepacks are already a threat to collections, because even with fees their use undermines sales. I have published six such books: five editions of Women: A Feminist Perspective and one of Social Movements of the Sixties and Seventies. Editing a collection of original articles specifically for course use is labor intensive, even when I mix in some reprints. As coursepacks and copying have become commonplace, sales have gone down. Each time I edit another anthology I wonder why I'm working for the minimum wage. If professors and copyshops can use what they like without even asking permission, why should I do all this work? If the Sixth Circuit's decision becomes the law of the land (not just four states), what is the incentive to do a sixth edition?

The hundred authors who told the court that they do not write for money should speak for themselves, not the rest of us. Research and writing costs time and money; for most of us it is not a hobby. Some writers even live off their royalties; at least one of the books in the MDS case was by a professional writer, not an academic. Even those of us who don't earn all that much find a little extra cash useful to meet our costs. For example, in NYC where I live and work, the major research libraries have an understanding that only one will buy expensive items like microfilm collections. The university libraries charge the unaffiliated substantial fees for their use. The "mere pittance" I sometimes get from coursepacks helps to pay those fees so I can create some of the material that faculty and students want to use for free. Since the writer bears the costs of creating a Work, it should be our choice on whether or not to give it away or charge a fee.

Money is not the only reward for publishing, but neither are the other rewards enhanced by unlimited copying for classroom use without permission. There's not much pleasure in having one's work read by others unless you know it is being read. If professors and copyshops don't even tell you that your Work is on their reading lists, how do you know? Academics may be paid indirectly for their Work--with jobs, promotions, raises, lecture fees, etc--but for indirect payment to act as a reward for writing or incentive for future work there must be some knowledge that one is read. And for those writers who are not in academia these indirect incentives are rarely there.

The Solutions

In the confused and ever changing state of mass market publishing, there is no one solution which will meet the needs of students for cheap copies, the faculty for ready availability, and that of writers and publishers for compensation. But there are some "better fits" than that practiced by MDS.

On way is to return to the system in place when I was an undergraduate: Works not important enough to the course to require student purchase should be put on library reserve. Students can still read them, and indeed they can still copy them, but they do pay the "inconvenience" cost that coursepacks otherwise cover. No writer quarrels with someone who makes a copy of their Work for personal use, only those who make multiple copies for sale.

Another solution, proposed by several of the commentators to my original post, is to make all education free, including all written work. I'm in favor of that, as long as writers and publishers get something for their labors, perhaps a set fee for each book as is done in China. But until this happens we do have to deal with the real world. Writers should not be required to work for free when others in the educational process are paid.

Still another possibility, for those who are particularly concerned about the cost of publications to students, is for the professors to pay the fees. They can plan the course and the coursepacks and can decide not to use anything they think is priced too high. Since assigning written work supposedly makes teaching easier, and coursepacks are designed by faculty for their own purposes, why shouldn't the faculty pay? After all, the average full-time faculty member makes more money than the average full-time writer. I'll bet there isn't a single faculty member reading this who favors that solution.

A better solution is a centralized registry of all copyrighted material whose employees do the work of obtaining permission (for a fee of course) from authors who have already indicated what their terms (or addresses) are. The real glitch in the current system isn't the money cost of getting permission to use copyrighted Work but the time cost and the uncertainty. This can be reduced through centralization. And in the last few months centralized registries have been organized precisely to simplify obtaining permissions.

One of these is the Publication Rights Clearinghouse of the National Writers Union. Authors pay a fee to be included and must provide lists of publications of which they own the rights. The PRC is particularly aimed at online publishers. It recently signed a contract with UnCover (owned by Knight-Ridder), which provides faxes of magazine and journal articles found through its' online index. The National Writers Union, an affiliate of the United Auto Workers, represents nearly 4,500 writers in all genres. For more information on enrollment in the PRC, contact Irvin Muchnick, NWU, 337 17th St., Suite 101, Oakland, CA 94612, phone 510-839-0110, fax 510-839-6097, or e-mail to irvmuch@netcom.com.

Another is the Authors Registry, which was formed by the Authors Guild--representing almost 7,000 published authors--to do for copyright holders what ASCAP does for music. It currently has 50,000 authors in its database that were registered by their agents or organizations; individual registrants are charged a fee. Contact Terry King, operations manager, Authors Registry, 330 W. 42, NYC 10036, phone 212/563-6920, fax 212/564-8363, or e-mail to staff@authorsguild.org

These promising developments may soon make it possible for professors to obtain permissions to use authors' Works quickly and easily, but not for free. Payment for use of their Work, in turn, will make it easier for writers to do more useful research and writing. But this will not happen if the Sixth Circuit decision leads to widespread free copying. Those who use coursepacks in their teaching should realize that if "fair use" becomes "free use" there will eventually be less to use at all.

The foregoing is Copyright 1996 by Jo Freeman. I hereby give permission for it to be reproduced and circulated in electronic form though I would appreciate it if anyone who reposts to other lists at least tells me. Anyone who wants to download it to print must contact me directly.

>From Paul Halsall Halsall@Murray.Fordham.Edu 13 March 1996

I thought we had ended this discussion.

But, since we have not...

Jo Freeman's exposition of the situation and the law was very interesting. Her personal assertions were less so.

First, in the face of over a hundred writers claims that they do not write for money, she asked who gave them the right to speak for all. [word garbled], I suppose, but then they were apparently speaking for *themselves* just as Jo Freeman was. Since, apparently, academic authors are not overwhelmingly concerned with making a profit on their texts[and dead authors whose publishers still claim copyright have no potential future motivation to write], perhaps a solution would be for teachers in academic institutions simply to exclude texts by writers for money?

The absurdity of the situation, and the lack of realism, is shown, I think, by the argument that texts can be simply put on reserve. What is the actual difference between telling a student to go and copy texts in the library, and presenting them with the texts already copied?

As an adjunct at both a private University[Fordham] and a public school[Brooklyn College] [I not Jo Freeman does seem to have access to a free CUNYVM account!], I think there is a class issue here not addressed by the arguments given.

At Fordham, where most students live on campus, and the library is open long hours with available staff, and working Xerox machines-it is not difficult for all students to copy reserve material. But at Brooklyn College, where students are almost all working long hours, where the library is not open late in the evening or Sunday or Friday evening, it is literally impossible for some students to get to the library. They may be able to do so a few times in the semester to search frantically for essay books, but they do not have the luxurious access of Fordham students. Without course packets for some courses they would be sunk.

In other words, the very people, in my experience, most likely to suffer from Jo Freeman's world view are the fairly poor, largely minority, students at public school where we struggle to give them access to the same quality of education as private university students under unbelievably difficult circumstances.

Furthermore, and counterfactual to Jo Freeman's claims, very many faculty-up to a third-are not adjuncts. The going rate in NYC varies between $1400 and $2000+ for a three credit course. Ms. Freeman lives in New York City. So do I. But she just does not seem to be living in the same world.

Finally, the argument that fair use copying will limit publication is unproven, and probably fallacious. Publishers use all sorts of tricks to make profit[pointless new editions which make older editions worthless in resale are the classic case] off students. And they do not pay academic authors much at all. But people keep writing, and there is no real evidence they will stop.

>From Margaret Paton Walsh magspw@u.washington.edu 13 March 1996

In response to Jo Freeman,

I read your latest post to H-Women with interest. As the daughter of an author who livelihood depended on royalties, advances, etc. and as an academic, who uses coursepacks in teaching I feel a good deal of ambivalence about this whole issue. Two aspects of the question which trouble me most were not, I think, really addresses by your post and I would be interested in your views:

  1. Does it make a difference, in your view, if the work being copied is out of print- thereby removing the option of assigning the book?
  2. How do primary documents fit into the picture-here, the courses most affected by copyright concerns(under stringent new policies recently established by the UW) in the history department are senior seminars for which instructors have traditionally collected substantial amounts of primary source material together in coursepacks. Since these are very focused course the chances of any collection coming even close to filling the requirements of the course are slender, but one professor's pack recently ran to over $100, with 2/3 of that cost being copyright payments.

Thanks.

>From Eve Fine U08996@UICVM.CC.UIC.edu 13 March 1996

After following the thread on coursepacks and copyrights with much interest, I felt I must respond to the posting by Jo Freeman because I have had experience with some of the suggestions she makes.

First, I have been responsible for the creation of "coursepacks" and for obtaining permissions and can testify it is a time consuming, tedious, and expensive job. It requires faculty to select readings so far in advance of the course to be unreasonable, but we have been doing it.

I would like to respond specifically to her suggestion that faculty pay for the coursepacks. Although our faculty do not personally underwrite the cost of coursepacks--our department does! We try very hard to find material for which publishers agree not to charge a permissions fee and we have rejected material solely because we find the fee too high. Since we create coursepacks for classes of approximately 200 students, even relatively small fees add up. The costs have become so high, that this year for the first time we required students to purchase coursepacks.

Secondly, regarding Ms. Freeman's suggestion to centralize the process of obtaining copyright permission-this is well underway, and it is by no means an improvement! She does not mention the "Copyright Clearance Center"--which has contracted with many, many publishers to handle copyright requests. Many publishers no longer handle copyright requests internally, but instead refer you to the Copyright Clearance Center[CCC]. While the CCC is quite efficient, all it really does is increase the cost of obtaining copyright permission--you have to pay an annual fee to obtain the privilege of using CCC's services, as well as a fee per request and a fee per page (up to a maximum dollar amount). I do not see this as progress.

Thirdly, regarding profiteering copy shops--many universities have their own on-campus "copyshops" whose object is not to make profits but to provide services to their educational communities.

Finally, and perhaps most importantly, the bulk of our coursepacks--and I am sure those created by others--consist not of material copied from books, but rather from articles from professional and academic journals. The authors of these articles certainly are not paid for their writing and do not receive any portion of the copyright fees the publishers receive.

>From H-Women Editors Kriste Lindenmeyer and Cheryl Malone 19 March 1996

Editors' Note: Cheryl and I have bee very happy to see the enthusiastic response to the discussion thread on copyright. Although we've called an end to the discussion for now, we continue to get interesting postings. The following will be the last two that we post for the immediate future. One of our subscribers has been inspired to do some research on the issue and will send us a complete report at a later date. In the meantime, Cheryl and I will save any postings we receive until the larger report is complete. Thanks again for your responses. We hope that this thread will appear on "Best of H-Net" on the H-Net home page sometime in the future. KL

>From Joan Gundersen jrgunder@coyote.csusm.edu 19 March 1996

A couple of points to add to the concerns about coursepacks and copyrights: 1) Authors of journal articles may not get paid, BUT when our works are anthologized as several of my journal articles have been, an author can ask for a small fee. This certainly does not happen when someone goes to a local copy shop. 2) University copy shops are also often profit-making entities. They are part of subsidiary activities. Many bid on jobs in competition with local printers. Others are expected to make a profit which helps subsidize other campus activities. 3)The problem with copyright has actually led my university library to refuse to allow copies of materials(even of journal articles acquired legally and not owned by our library) to be placed on reserve without proof that we have permission to recopy. This meant that materials I had requested from Carl UnCover could not even be put on reserve.

>From Vera Britto fiatlux@umich.edu 19 March 1996

The issue of copyright also raises the question of how the costs of paying for copyright fits into the larger economic political system of education. Class inequity in higher education is exactly why women(among others) have experienced a history of discrimination and oppression both to getting access to a decent income (which is how one funds education in this system) as well as to education in general. Therefore, the costlier the education for the student, the more women will be hurt by this system.

I am also concerned that more and more the onus of education costs are being dumped on the students and thereby perpetuating the larger discrimination process based on wealth. Education should be free--a right. I hope that established professors and scholars do not forget the inequities of the current system when writing women's history.

>From Jo Freeman JFRBC@cunyvm.cuny.edu 12 April 1996

The Sixth Circuit Court of Appeals has granted plaintiffs motion for a rehearing en banc. The former decision dismissing their suit has been vacated. Briefs are due in June. Those of you who were thrilled at the possibility of using an author's work in your coursepacks without permission or compensation should probably put your glee on hold until the court speaks again.

X-Post from H-Post@UICVM.CC.UIC.EDU 27 April 1996

Jim Smith, (owner of the Michigan Document Service, MDS) is the defendant in an important legal case involving copyright. Several H-Net lists have discussed this issue, and the opinion of our subscribers is split pro-and-con. Smith's MDS prepared "coursepacks" comprising excerpts from copyrighted books selected by professors, and sold the coursepacks to students. MDS did not ask permission or pay royalties. Several publishers sued and won in the district(lower)federal court.

However, In February a 3-judge panel of the US 6th Circuit Court of Appeals reversed the lower court and upheld MDS. It stated that "coursepacks" did NOT violate the fair use provisions of copyright laws. The panel said that professors have a "fair use" right to make multiple copies for classroom use, and that having a commercial firm handle the copying did not undermine that right. The publishers appealed, and now the entire 6th Court(16 judges) has agreed to rehear the case(probably in early 1997). Smith is seeking help from faculty members who are members of The Author's Guild,Inc., The Text and Academic Authors Association,Inc. and The American Society of Journalists and Authors, Inc.

H-Net has not been asked for help by the publishers/plaintiffs.

H-Net, of course, is not the forum for plaintiffs and defendants to discuss their lawsuits. This particular case, however, is of critical interest to many teachers, and we need to keep our subscribers abreast of developments. Smith is not a scholar and his interest in the case is primarily his own private financial benefit. Therefore, if you wish to help Smith or obtain further information from his viewpoint, do not write H-Net lists but instead contact Smith directly at michdoc@provide.net. Richard Jensen, H-Net Executive Director

NCC Washington Update 21 May 1996

Appeals Court to hear "Course Pack" Case on June 12

On June 12 the 16 judge panel of the U.S. Court of Appeals of the Sixth Circuit will hear oral arguments in the case of Princeton University Press, Macmillan Inc., and St. Martin's Press,Inc. v. Michigan Document Service (Case No. 94-1778). This case, frequently referred to as the "course pack case," deals with charges by the three presses that the Michigan Document Service, which has five small copy shops that service the University of Michigan and other schools, has violated the copyright act by reproducing course packs without securing copyright permissions from the authors and publishers. Jim Smith, owner of Michigan Document Service, has argued that he is protected by "fair use" in making multiple copies for classroom teaching and that professors signed statements that they would not have assigned the original works, even if copied excerpts were not available.

Briefs in the case were due in the court on May 17. The oral arguments on June 12 will be held in Cincinnati. The Appeals court is scheduled to hear four cases that day, with this case slated to be the fourth one.

NCC Washington Update 20 June 1996

Appeals Court Hears Coursepack Case

On June 12 the Sixth Circuit Court of Appeals in Cincinnati heard oral arguments in the Princeton University Press, et al v. Michigan Documents Service, Inc., case No. 94-1778, frequently called the "coursepack case". Chief Judge Merritt presided and thirteen judges participated in this rehearing. In February a three judge panel of the Sixth Circuit Court of Appeals ruled that "coursepack" copying undertaken by the Michigan Documents Service was "fair use". However, in April the Court effectively dissolved that decision and decided that all of its judges would serve as a panel to rehear the case and deliver an opinion.

Susan Kornfield, the lawyer for the Michigan Document Service, rooted her arguments in the assertion that the case was about "fair use" for educational purposes and that the law, which allows multiple copies for teaching, does not require that the professors or students operate the photocopying equipment. She further argued that publishers must present evidence that the material included in "coursepacks" substituted for the purchase of the book and resulted in economic harm to the publishers. Ronald S. Rauchberg represented the publishers and rooted his case is the assertion that a commercial business was making a profit at the expenses of owners of intellectual property.

Both lawyers were interrupted repeatedly by the judges who had numerous questions about a wide range of issues, such as: the basic purposes of the fair use section of the copyright law; what limitations exist on the amount of copying allowable for classroom use; how should the court determine whether copying substitutes for a purchase; does fair use interfere with incentives for creating new works; the relationship of "licensing" to fair use issues; the relationship of classroom guidelines on fair use to the issues in this case; if professors or students copied the coursepacks would it be fair use; the meaning of "multiple copies" for use in teaching provision in the fair use statute; issues differentiating spontaneous and sporadic copying and systemic copying; and various aspects of the effect of "coursepacks" on the market.

A decision is not expected for several months. In preparing this summary, the use of notes by Kenneth Crews, Assoc. Professor of Law and Library and Information Science at Indiana University-Perdue University at Indianapolis,[ who was present for the oral arguments] was heavily relied upon.

NCC invites you to redistribute NCC Washington Updates. A complete backfile of these reports is maintained by H-Net. See World Wide Web: http://h-net.msu.edu/~ncc/


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