Copyright Issues

Posted to DEOS-L 13 September 1999

Copyright is frequently an issue on this list, a statistic reflecting the fact that it is increasingly an issue for distance educators. When any such question arises, Carl Franklin is there to help us with the law. But while I appreciate Mr. Franklin's generosity, I am increasingly frustrated by the narrow view of the issue he presents.

While most distance educators are working in a daya-to-day reality which requires that they consult without comment the dictates of law, it is my opinion that there ought to be a more wide ranging discussion of copyright, at least on a list of academics and researchers such as this.

Mr. Franklin's frequent references to the law, in my opinion, overlook several factors:

1. Very often, the cases he cites (such as Princeton University Press, v. Michigan Document Services) are from the paper-based domain, and not the domain of online learning or online resources. I have yet to see a good argument from him showing that the law transfers smoothly into electronic content.

1a. An online reproduction is fundamentally different from a paper-based reproduction. In an email to WWWDEV 06 August 1998 I argue that the very concept of 'copying' is altered by new technology. See wwwdev11.htm

1b. Material available online is - with very few exceptions - fundamentally free. Users pay only internet access charges (and those to a service provider, not the copyright holder). A copy of a web page, therefore, cannot diminish the value of that web page because the web page had no value to begin with.

1c. It is not clear that a web site - even a web site for an online course - constitutes 'publishing' or 'broadcasting'. Sure, Mr. Franklin cited some cases where 'course packs' were created by photocopying text books. But in the cases cited, the copiers reproduced hundreds of copies, and in some cases, sold them for a profit.

2. Moreover, even were he to cite some case law attesting to this (there are some examples scattered about), in my opinion, he needs to present a case showing that copyright law ought to be so transferred, lock, stock and barrel. The presumption - at least on the part of many people working on the internet - is that electronic media constitute a fundamentally new domain, and that the law will have to be rewritten, and not merely transferred wholesale.

3. Mr. Franklin's citations always seem to present a bias in favour of the copyright holder. It is true that the law favours copyright holders to a significant degree. Yet he is silent about cases which favour the person doing the copying. Some examples:

3a. If the material being copied is in the public domain, or is a representation of material which ought to be in the public domain, then it can be copied. A good example of this is addresses and telephone numbers, as in the case of Feist Publications, Inc. v Rural Tel Service Co., 499 U.S. 340 (1991) (U.S. Supreme Court).

3b. If the material is reproduced for the purpose of parody or criticism, copyright is not violated. A good example of this is 2 Live Crew's Parody of Acuff-Rose Music's "Oh Pretty Woman". Capbell v Acuff-Rose Music, 92-1292 U.S. Supreme Court.

The judges comment, "The fair use doctrine thus "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." Stewart v. Abend, 495 U.S. Supreme Court 207, 236 (1990) (internal quotation marks and citation omitted)."

3c. The rebroadcast of copyright materials is not always a copyright violation. For example, it is perfectly legal to rebroadcast radio signals in a restaurant. Twentieth Century Music Corp. v Aiken 422 U.S. 151 (1975) U.S. Supreme Court.

Many more examples exist where the copier - not the copyright holder - won the day.

The three cases cited above - as well as the three cases cited by Mr. Frankin in his original email - may all be found at A full and fair treatment of the subject by Mr. Franklin, I think, should properly have included the URL of what appears to have been his primary resource.

4. The cases cited by Mr. Franklin are of exclusively American origin. While American influence is strong, it is not yet the case the American law prevails internationally. DEOS is an international list, and many questions of copyright law, while resolved in American courts, are not resolved in international law.

4a. It is not clear that American law ought to be the standard by which we govern ourselves internationally. As Americans hold the majority of copyrights in the world, it is natural that American law would favour copyright holders. Courts in less enfranchised nations might be less favorably inclined.

4b. It is not clear that stong copyright protections as envisioned in American law are appropriate in an international context. Many nations cannot afford the high royalties charged by American companies, and yet have a mandate to provide an adequate education for their citizens. In such cases, one would think, national interest should prevail.

Some criticism,

The U.S. Court of Appeals for the Sixth Circuit concluded that the copying of excerpts from books and other publications by a commercial copy service without the payment of fees to the copyright holders was NOT fair use. In other words, just because it was for an academic or teaching purpose is not - in and of itself - enough to warrant even the copying of 5% of a total document.

Mr. Franklin's summary of the case is accurate. His interpretation (beginning with the phrase "in other words") is not. Kinko's lost the case, not in spite of the educational use provision, but rather, because the judges ruled that Kinko's use was not educational use. They write, "The use of the Kinko's packets, in the hands of the students, was no doubt educational. However, the use in the hands of Kinko's employees is commercial. Kinko's claims that its copying was educational and, therefore, qualifies as a fair use. Kinko's fails to persuade us of this distinction."

Another case worth mentioning has to do with photocopying "scientific journals" under the "fair use" exemption. In American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995), the court closely examined the issue and again set forth the standards to be applied.

What Texaco did was to hold one or a few subscriptions to scientific journals, then provide copies of articles of those journals to its 400 to 500 research scientists, not for immediate reference or use, but rather, to provide each researcher with a library of relevant materials. very little academic photocopying resembles this sort of use.

One of the better discussions of "fair use" comes in Campbell v. Acuff-Rose, 510 U.S. 569, 114 S.Ct. 1164 (1994). This case has been one of the more notorious in recent years and since it comes from the U.S. Supreme Court can be said to be the last word on the issue (so to speak).

It is clear that the fair use doctrine "tempers the protection of copyright by allowing ... [the] use [of] a limited amount of copyrighted material under some circumstances." See, Twin Peaks Productions, Inc. v. Publications International, Ltd., 996 F.2d 1366, 1373 (2d Cir.1993). It is also clear, though, that "fair use" is not a carte blanche grant of permission simply because the use is for academic/research/teaching purposes.

I might point out this this is about the only paragraph in the entire ruling which points to any restriction at all. As indicated by the quote I cite a number of paragraphs above, the judgement on the whole expresses just the opposite sentiment. And recall that the ruling supported the defendent, not the copyright holder.

Mr. Franklin wraps up,

The long and short of it, in my never humble opinion, is that copying something from the Internet (or other electronic source) may be a copyright violation is if does not fit one of the enumerated exemptions. For a "fair use" claim one would have to show you have met the guidelines of the statutory language as well as current case law.

The presumption here is that the use, in order to count as an instance of fair use, must be explicitly endorsed by legislation or case law. In other words, if it is not explicitly permitted, it is disallowed. But why would that be the case? It seems equally plausible to argue that the onus is on the publisher to show that the use is not an example of fair use.

Certainly, the prima facie case is on the side of the educator. The copying is educational, it is not for commercial purposes, and (especially in the case of web sites) it does not affect the value of the copyrighted material or the potential revenue obtained by the copyright holder. One would think that exceptions to the fair use provision would be hard to find in the academic environment, not the norm.

But we know where Mr. Franklin's sympathies lie,

On a side note (and this is just a pet peeve of mine), the term "xerox" is a violation of Trademark. The Xerox company is very stingy with the use of their name: it is not a verb. You can NOT "xerox" something or make a "xerox" - you can, however, photocopy or reproduce using a Xerox machine.

Most likely Mr. Franklin would like us all to use the word 'icebox' instead of fridge, as well.

But more likely, Mr. Franklin is missing the point of common discourse and common language. Many images, icons and trademarked phrases, such as "Where do you want to go today?" or even "The Net" are instances of trademark phrases, and yet are cited in conversation, posts to discussion lists, and even on web pages without accreditation.

Copyright is not - and was never meant to - govern the day-to-day correspondence of people one to each other, even in a forum such as this, where my use of those phrases reached an audience of over a thousand.

Language does not belong to the copyright holder. It is a common currency, a public domain, a medium of exchange shred by all and owned by all. In the discourse which takes place between student and student, or between instructor and student, many provisions of copyright do not apply because they are instances of private correspondence.

Online communication is an extension of that correspondence. It enables one person to communicate with many, or for a communication to persist over time, but that in no way makes it less of a private correspondance.

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