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copyright and fair use
``` I believe I neglected to send this out when I first got it. Phil
Date: Tue, 27 Dec 94 14:07:45 PST
From: RISKS Forum
RISKS-LIST: RISKS-FORUM Digest Tuesday 27 December 1994 Volume 16 : Issue 68
---
Date: 26 Dec 94 22:15:12 EST From: "Mich Kabay [NCSA Sys_Op]" <75300.3232@compuserve.com> Subject: RISKS of guessing at Fair Use
In an article by Andrew Lawler in Science magazine (94.11.25; 266:1315) entitled "Court says no to copying articles," we read of a recent case which may affect anyone who collects news, newspaper, magazine and journal articles:
Thinking of photocopying an article from your favorite journal? Think again. Last month [in October 94] a three-member federal appeals court in New York ruled that a Texaco Corp. scientist violated copyright laws by making one copy each of eight articles in a scientific journal and placing them in his files. The 2-1 ruling dramatizes the uncertainty over what constitutes fair use of copyrighted material, say lawyers familiar with the case, adding that the ruling should prompt companies and universities to review their policies toward copying.
According to the author, the suit was launched by the American Geophysical Union (AGU) and more than 80 other plaintiffs. They accused Texaco of "copying and distributing hundreds of scientific articles to hundreds of researchers" and picked a sample case for the civil suit.
The court ruled that because the scientist in the sample case (David Chickering, who copied the eight articles from the journal Catalysis) filed the papers away in his library rather than use them immediately, he was in violation of the fair use laws governing copyrighted materials.
The dissenting judge wrote that because the defendant used the copied materials for research only, that use fell under existing fair use doctrine.
"Jon Baumgarten of Proskauer. Rpse. Gpetz & Mendelsohn in Washington," one of the lawyers for the plaintiffs, said that it's not true that "all educational use is fair use." He advised academic researchers to "Consult with your university counsel before making copies."
< TERMS AND CONDITIONS
Computer Database Plus and its contents are copyright (c) 1988-1994
by Information Access Company (IAC) and/or its data suppliers.
Copying, retransmitting, redistributing or publishing any part of
this database, either in hardcopy or electronically, is prohibited.
The material contained in this database is provided only to individual
users. Users may electronically store downloaded material only to
facilitate changing the format or presentation of the material. If
the user is retrieving information on behalf of another, the user
may supply only one (1) printed copy. Copyright notices must not be
removed from any material retrieved from this database. Judging from the ruling described above, the IAC may very well be able to
argue that its rules are not superseded by fair use doctrine. Thus storing
specific articles in files on one's own hard disk for later search and use may
be prohibited regardless of intention or actual use. Similarly, the Executive News (ENS) Service on CompuServe, which provides news
wire feeds in real time, allows users to store captured stories ("clippings")
for a maximum of 14 days, after which they are discarded automatically. The
introductory text for this service makes no specific restrictions on storage. In ENS, individual newswires have different copyright wording: * AP includes, "All rights reserved. The information contained in this news
report may not be republished or redistributed without the prior written
authority of The Associated Press."* Reuter's entries state, "Copyright Reuters America Inc. 1994. All rights
reserved." UPI articles include only, "Copyright 1994 United Press International" Washington Post has, "Copyright 1994 The Washington Post." It may be that storing copies of these articles in one's own online archives
is actionable. For those unfamiliar with fair use doctrine, I include the following
commentary to stimulate further thought and discussion: -------------------- %<>== -------------------------- US COPYRIGHT OFFICE CIRCULAR ON FAIR USE (1993) One of the rights accorded to the owner of copyright is the right to reproduce
or to authorize others to reproduce the work in copies or phonorecords. This
right is subject to certain limitations found in sections 107 through 120 of
the copyright act (title 17, U.S. Code). One of the more important limitations
is the doctrine of "fair use." Although fair use was not mentioned in the
previous copyright law, the doctrine has developed through a substantial
number of court decisions over the years. This doctrine has been codified in
section 107 of the copyright law. Section 107 contains a list of the various purposes for which the reproduction
of a particular work may be considered "fair," such as criticism, comment,
news reporting, teaching, scholarship, and research. Section 107 also sets
out four factors to be considered in determining whether or not a particular
use is fair:
(1) the purpose and character of the use, including whether
such use is of 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. The distinction between "fair use" and infringement may be unclear and not
easily defined. There is no specific number of words, lines, or notes that
may safely be taken without permission. Acknowledging the source of the
copyrighted material does not substitute for obtaining permission. The 1961 Report of the Register of Copyrights on the General Revision
of the U.S. Copyright Law cites examples of activities that courts have
regarded as fair use: "quotation of excerpts in a review or criticism
for purposes of illustration or comment; quotation of short passages in a
scholarly or technical work, for illustration or clarification of the author's
observations; use in a parody of some of the content of the work parodied;
summary of an address or article, with brief quotations, in a news report;
reproduction by a library of a portion of a work to replace part of a
damaged copy; reproduction by a teacher or student of a small part of a work
to illustrate a lesson; reproduction of a work in legislative or judicial
proceedings or reports; incidental and fortuitous reproduction, in a newsreel
or broadcast, of a work located in the scene of an event being reported." Copyright protects the particular way an author has expressed himself; it does
not extend to any ideas, systems, or factual information conveyed in the work. The safest course is always to get permission from the copyright owner before
using copyrighted material. The Copyright Office cannot give this permission. When it is impracticable to obtain permission, use of copyrighted material
should be avoided unless the doctrine of "fair use" would clearly apply to the
situation. The Copyright Office can neither determine if a certain use may be
considered "fair" nor advise on possible copyright violations. If there is any
doubt, it is advisable to consult an attorney. Last update 6/10/93 (raa) -------------------- %<>== -------------------------- Another useful document is the following: (DRAFT VERSION) COPYRIGHT LAW AND MULTIMEDIA DEVELOPMENT IN EDUCATION Section 106 of the Copyrights Act (P.L. 94-553) describes the exclusive rights
of copyright owners. "[T]he owner of copyright...has the exclusive rights to do and to authorize
any of the following: 1. To reproduce the copyrighted work in copies or phonorecords; 2. To prepare derivative works based upon the copyrighted work; 3. To distribute copies or phonorecords of the copyrighted work to the public
by sale or other transfer of ownership, or by rental, lease, or lending; 4. In the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform the
copyrighted work publicly; and 5. In the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to display
the copyrighted work publicly." The fair use provision of the Copyrights Act is found in Section 107 which is
reproduced below. "Notwithstanding the provisions of section 106, the fair use of a copyrighted
work, including such use by reproduction in 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." The legislative history which speaks to the fair use provision acknowledges: "The judicial doctrine of fair use, one of the most important and well
established limitations on the exclusive right of copyright owners, would
be given express statutory recognition for the first time in section 107.
The claim that a defendant's acts constituted a fair use rather than an
infringement has been raised as a defense in innumerable copyright actions
over the years, and there is ample case law recognizing the existence of the
doctrine and applying it." It should be noted that at this point, the legislative history reiterates
the four points listed above from section 107. Fair use must meet all four
criteria to be a protected activity. "Although the courts have considered and ruled upon the fair use doctrine over
and over again, no real definition of the concept has ever emerged. Indeed,
since the doctrine is an equitable rule of reason, no generally applicable
definition is possible, and each case raising the question must be decided on
its own facts. On the other hand, the courts have evolved a set of criteria
which, though in no case definitive or determinative, provide some gauge for
balancing the equities. These criteria have been stated in various ways, but
essentially they can all be reduced to the four standards which have been
adopted in section 107...." There are no definitive standards or guidelines governing the use of
copyrighted materials in the preparation of multimedia courseware for
instruction, or classroom presentations utilizing multimedia. However, while
developing these products, faculty should be governed by the same criteria
which are prescribed for the use of copyrighted print materials. In essence,
the use of copyrighted print materials is governed by three criteria: Spontaneity: The "fair use" of copyrighted materials in an educational setting
should be at the "instance and inspiration of the individual teacher...."
Further, the "inspiration and decision to use the work and the moment of
its use for maximum teaching effectiveness" must be so close together in
time "that it would be unreasonable to expect a timely reply to a request
for permission." In other words, the decision to use the material must be the
instructor's and not dictated by management or administration and it must be a
spontaneous decision. Brevity: With regard to print media, the guidelines are specific even to the
point of specifying the maximum length of an excerpt from poetry or prose.
Though these limits do not apply to non-print media, they clearly indicate
that the intent is for a small portion of the original to be copied under fair
use, and not a substantial portion of the work. Cumulative Effect: "...copying of...material is for only one course in the
school in which the copies are made." The guidelines for copying of print
media, states "[n]ot more than one short poem, article, story, essay or two
excepts from the same author, nor more than three from the same collective
work or periodical volume during one class term" is permitted. Even though
the media may be different, faculty can best avoid copyright infringement
by following the spirit of these guidelines when dealing with other forms of
media in a multimedia presentation. For instance, using 8 minutes from a 10
minute video tape (in a multimedia presentation) would appear to violate the
fair use guidelines by diminishing the "potential market" and value of the
copyrighted work. Instructors should be aware that when relying on the fair use provision, the
use of copyrighted materials must meet all three tests (spontaneity, brevity,
and cumulative effect). Instructors are encouraged to procure copyright
releases for materials which they anticipate using for longer than one term. Finally, the guidelines (developed by the Ad Hoc Committee on Copyright
Revision, the Author-Publisher Group, and the Association of American
Publishers) also indicate that 1. "Copying shall not be used to create or to replace or substitute for
anthologies, compilations, or collective works..." 2. Copying is not allowed from consumable works such as "workbooks,
exercises, standardized tests and test booklets and answer sheets...." 3. "Copying shall not substitute for the purchase of books, publisher's
reprints or periodicals...(and shall not) be repeated with respect to the same
item by the same teacher from term to term." It should be noted that clip art, clip video, and clip audio are marketed
and available for use in developing multimedia materials. These forms of "clip
media" are licensed to the purchaser (individual, school, or faculty member)
for use in multimedia presentations. In many cases, clip media can be used to
substitute in a presentation for copyrighted materials that might violate the
fair use provision.
Assembled by the Academic Computing Technologies Group, Johnson County
Community College, Overland Park, KS 66210. -------------------- %<>== -------------------------- Given the nature of the RISKS FORUM and NCSA FORUM membership, I think these
issues warrant further clarification. I invite legal counsel with expertise
in the field to comment.>> Mich M.E.Kabay,Ph.D./DirEd/Natl Computer Security Assn --- End of RISKS-FORUM Digest 16.68 ---
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