Fair
Use: A Double-Edged Sword
Sanford G. Thatcher
Exploring
the definition of ‘fair use’ as a facet of copyright law
in the United States, Sanford Thatcher examines the inherent tension
caused by this legal notion in scholarly publishing, particularly
in the new electronic era. Libraries, and, by extension, universities,
increasingly advocate a stronger assertion of fair use in higher education
to cope with diminishing funds.University
presses, in contrast, view broader definitions of fair use as a threat
to the already decreasing market potential for scholarly monographs,
despite recognizing that their interests are closer to the aims of
higher education than they are to the aims of commercial publishers.
As
an example of this double-edged sword, Thatcher discusses photocopying
and electronic journals and their economic and legal effects on publishers.
Without due consideration of university presses and their mandate
to publish scholarly research, aggressive fair use will constrain
those publishers and adversely affect the careers of the authors fair
use is designed to assist.
‘Fair use’ as a part of copyright law in the United States
is meant to ensure a balance between the right of authors to benefit
sufficiently from the way others use their work to provide motivation
for continuing creative activity and the right of the public (including
other authors) to use that work in ways that will ‘promote the
progress of science and useful arts’ (in the US Constitution’s
language) but not interfere with or undermine the author’s incentive
to create.
In
higher education, where most writing done to disseminate the results
of research is so specialized as not to be of interest to people outside
the academy and where publications (apart from basic textbooks) have
historically tended not to have a large enough market to interest
commercial publishers, universities have taken it upon themselves
to provide a mechanism, through university presses, for the distribution
of new knowledge. Typically these presses serve as agents for their
academic authors, handling all the rights transferred to them by the
authors. Since direct monetary rewards from scholarly publishing are
usually small or non-existent, authors look more to the benefits that
accrue to them in career advancement than to royalties as compensation
for their labours. Accordingly, the economic impact of
fair use on them in any direct way is negligible. University presses,
however, must operate as businesses, just as commercial publishers
do, and the impact on them can be considerable if fair use is carried
too far.
‘Fair use’ as a judicially created doctrine was originally
applied (beginning with the classic case of Folsom v. Marsh in 1841)
to the situation where one author quoted another author for purposes
of comment or criticism, thus using the copyrighted work of an earlier
author in a manner that added value to it. There was here no duplication
of the earlier work for its own sake; any such copy of a merely duplicative
kind was proscribed as piracy. When photocopiers began to proliferate
in the 1950s, however, it became easy for anyone to make any number
of copies of an original work, and the cost of doing so – as
with most modern technology – continued to decrease over time.
Thus the stage was set for a new examination of the meaning of fair
use.
The
US Congress, in passing the 1976 Copyright Act, acknowledged the possibility
in section 107 (where ‘fair use’ was for the first time
codified in statutory form) that the making of ‘multiple copies
for classroom use’ might qualify as fair use, within limits.
An attempt to define those limits took the form of the Classroom Guidelines
that were negotiated by a group representing both publisher and user
interests and that Congress sanctioned by including the guidelines
in its report accompanying the new legislation.
When
photocopying grew into a commercial business providing a service to
teachers who wanted to create the customized anthologies we now call
‘coursepacks,’ publishers challenged this practice. In the
most notable case to date, publisher plaintiffs won a nearly $2 million
settlement in 1991 in an infringement suit brought against Kinko’s
Corporation. A similar case, involving Michigan Document Services
as defendant and Princeton University Press as one of the publisher
plaintiffs, was decided by a vote of 8–5 against MDS by the Sixth
Circuit Court of Appeals sitting en banc in 1996.
The
judge in the Kinko’s case ruled in no uncertain terms that coursepack
copying done by Kinko’s far exceeded the limits envisioned by
Congress; it merely multiplied copies, in direct competition with
the publishers’ market, adding no value to them. This lack of
any ‘transformative’ use played a key role also in the successful
suit brought by over eighty publishers against the Texaco Corporation,
decided in 1995. Also clarifying Congress’s intent was a ruling
by the Supreme Court in 1994 that emphasized that ‘the mere fact
that a use is educational and not for profit does not insulate it
from a finding of infringement.’
A
lesson to be learned from these court cases is that the type of copying
done by technological means that simply produces more copies –
not only with photocopy machines but also now with networked computers
– needs to be distinguished from copying that is truly transformative.
The latter is what fair use was always meant to protect; the former
runs the risk of undermining the market that needs to exist if authors
– and, in the academic community, university presses as their
agents – are to continue providing their service to scholarship.
As Judge Newman put the point in writing the majority opinion in the
Texaco case,
We would
seriously question whether the fair use analysis that has developed
with respect to works of authorship alleged to use portions of copyrighted
material is precisely applicable to copies produced by mechanical
means. The traditional fair use analysis, now codified in section
107, developed in an effort to adjust the competing interests of
authors – the author of the original copyrighted work and the
author of the secondary work that ‘copies’ a portion of
the original work in the course of producing what is claimed to
be a new work. Mechanical ‘copying’ of an entire document,
made readily feasible and economical by the advent of xerography
... is obviously an activity entirely different from creating a
work of authorship. Whatever social utility copying of this sort
achieves, it is not concerned with creative authorship.
Failure
to keep this crucial distinction between transformative and non-transformative
copying in mind has plagued discussions of fair use in recent years,
leading to much confusion and obfuscation, not only among students
and scholars who know little about copyright law but even among professionals
in universities and outside who have a responsibility to be familiar
with copyright law and how it is applied.
Since
the Second World War, there has been one market (besides textbooks)
that commercial publishers, following the lead of pioneer Robert Maxwell,
entered with vigour, realizing the potential for great profits: scientific,
technical, and medical journals (known in the industry as STM publishing).
This has been a readily exploitable market for two reasons: first,
the US federal government invested huge resources in supporting scientific
research in the Cold War era, often providing as part of grant money
sums allowed to be used as ‘page charges’ for publishing
in STM journals; and, second, library budgets also expanded in tandem
with this massive investment in scientific research, at least for
a while.
The
key to success for commercial publishers was simply selling scientists
on lending their prestige to the new journals that these publishers
launched. As Maxwell himself described the workings of this system,
‘I set up a perpetual financing machine through advance subscriptions
as well as the profits on the sales themselves. It is a cash generator
twice over … If Pergamon could win the trust of scientists it
could establish the standard journal in each specialization, and that
would give it a series of publishing monopolies … scientists
are not generally as price-conscious as other professionals, mainly
because they are not spending their own money.’1
This
system operated successfully for commercial publishers for several
decades, encouraging them to launch 30,000 new science journals during
the 1980s alone, but began breaking down when library budgets could
no longer absorb price increases at double the rate of inflation or
more along with the ever more rapid proliferation of new journals.
Librarians,
pressed to the wall, began the difficult process of cutting back on
journal subscriptions but also increasingly called for more vigorous
assertion of fair use within higher education, for altered behaviour
by academic authors in transferring their rights to publishers (in
what some have called the ‘take back the copyrights’ movement),
for creation of new electronic journals to provide alternative outlets
for publication of scientific research (as supported by the Scholarly
Publishing and Academic Resources Coalition launched in 1998), and
even for changes in the copyright law (as with the initial proposals
to allow virtually unlimited copying for distance education in some
early bills leading up to the Digital Millennium Copyright Act of
1998). One major initiative along these lines was the Report of the
AAU Task Force on Intellectual Property Rights in an Electronic Environment
of the Association of American Universities (in conjunction with the
Association of Research Libraries, or ARL), issued in mid-1994.2
What
is not sufficiently recognized in efforts like these is the effect
that implementing such proposals would have on the ability of university
presses, as the long-established publishing arm of higher education,
to continue their business. Already struggling to continue publishing
scholarly monographs in the humanities and social sciences, the institutional
market for which eroded in direct proportion to the increase in library
expenditures on STM journals from the early 1970s on, university presses
have viewed calls for more extensive fair use and changes in copyright
law as direct threats to their own enterprise, the contribution of
which they believe to be equally in the best interest of the future
of scholarly communications.3
At
the same time, presses recognize themselves to be integral parts of
their own universities and the system of higher education generally
and thus to have goals different from those of commercial publishers.
For that reason, the Association of American University Presses has
sometimes parted ways with the Association of American Publishers
(even though their memberships overlap) on copyright issues, most
notably in their different positions on the proposed fair use guidelines
for electronic library reserve systems (where, interestingly, the
ARL also parted company with some other library associations by not
supporting the guidelines) that were an outgrowth of the Information
Infrastructure Task Force’s 1995 White Paper4
and the Conference on Fair Use (CONFU) pursuant to its recommendations.
University presses, just because of this dual identity they have that
straddles the commercial business world and the higher education community,
can play a mediating role in debates over fair use between the for-profit
and non-profit sectors, but unfortunately their voice is seldom sought
or heard in these debates, particularly where it counts most, in the
halls of Congress and the groves of academe.
Fair
use is thus a double-edged sword that can be wielded responsibly to
make sure that the rights of users in the higher education community
are not eroded in this new electronic era and that the potential benefits
of technology for enhancing dissemination of knowledge are fully realized,
but that can also easily be wielded irresponsiblyin such a way as
to undercut the very economic basis on which universities’ own
publishing operations depend to continue providing their service to
scholarship. More aggressive fair use may benefit teachers in the
short term, but if its effect ultimately is to constrain university
presses from publishing new scholarly monographs, the interests of
those teachers who are also authors seeking career advancement through
publication will not be well served.5
SANFORD
G. THATCHER is Director of the Penn State University Press and chair
of the Copyright Committee of the Association of American University
Presses.
1
As quoted by Dennis P. Carrigan in ‘Commercial Journal Publishers
and University Libraries: Retrospect and Prospect,’ Journal of
Scholarly Publishing 27, 4 (July 1996): 210
2
The Report of the AAU Task Force on Intellectual Property Rights in
an Electronic Environment is available on-line at http://www.arl.org/aau/IPTOC.html.
3
For a fuller discussion of how university presses uniquely contribute
to the system of scholarly communication, see Sanford G. Thatcher,
‘The “Value Added” in Editorial Acquisitions,’
Journal of Scholarly Publishing 30, 2 (January 1999): 59–71.
4
Intellectual Property and the National Information Infrastructure:
Report of the Working Group on Intellectual Property Rights is available
online at http://www.uspto.gov/web/offices/com/doc/ipnii/index.html.
5
This is not to say that scholars (and publishers) should not be more
aggressive in making transformative uses of existing work under the
fair use doctrine. For a cogent argument supporting this position,
see Harold Orlans, ‘Scholarly Fair Use: Chaotic and Shrinking,’
Change 31, 6 (November/December 1999): 52–60.
