[Air-l] Copyright and fair use: a short overview

Thu May 24 03:44:16 PDT 2001

Dear Colleagues,

Nancy Baym has requested a professional opinion on copyright and fair 
use. While I am not a lawyer, I did learn a lot about copyright and 
fair use as an editor and publisher. Law is both a matter of 
technical details and interpretation. In my experience, there is no 
question that in technical terms and in the letter of the law, Jeremy 
Hunsinger and Ed Lamoreux are right.

While the different practices of the publishers that provide 
Web-based emailing of their articles offer food for a research 
project, these distinctions do not overcome or change the nature of 
copyright law as it stands now.

The law as it stands now probably distinguishes among several kinds 
of acts that may not be evident to members.

There is, for example, a distinction between publishing - or 
reprinting -- and sending an article to an individual.

Mailing an article one copy at a time sent one-by-one to 10,000 
colleagues would be permitted under the law if done from the specific 
Web site provided by the publisher for sending articles.

It might be permitted under the law if done by hand, 
one-post-at-a-time from someone's own computer as long as there were 
no commercial motive and the repost involved the comprehensive 
reposting of all identification details, copyrights, and 
advertisements in the same document sent from the publisher's own 
site.

It should be noted, however, that in the act of reposting an article 
one article at a time to a large list, it might be held that someone 
had acted to publish or reprint the article. If this were to be the 
basis of legal action under copyright law, and if it were decided by 
a court that this act did, indeed, constitute publication, then the 
act would be a violation of copyright law.

Using a program to send 10,000 copies of an article on a single 
command would undoubtedly constitute an act of publication or 
reprinting. This is forbidden under copyright law.

Using a server to send copies of an article to a predefined list fits 
this category. This is the case whether the list is a few dozens of 
people or many thousands.

Now the question arises whether practice in a new medium of 
communication can be held to change the law in some way. Would it be 
the case, for example, that reposting articles from the New York 
Times to a list of students in my own school would be permitted as an 
education exception to copyright permitted under fair use? Probably. 
Would it be the case that posting articles from the New York Times to 
this list would fit that exemption to copyright law? Probably not.

If and only if (1) the NYT were to be made aware that these articles 
were being reposted to AIR-L without written permission, AND (2) the 
NYT in proper possession of this information failed to act to assert 
copyright control, would the question of a change to the law possibly 
arise.

How likely do you think this is? Imagine, for example, notifying the 
NYT that you are publishing their articles without permission. How 
likely do you think it is that the NYT would not act to assert 
copyright?

Publishing or posting articles WITHOUT the knowledge of the copyright 
holder is irrelevant to the law. The law is clear. The material is 
copyright. Copyright violations remain violations until discovery. 
Discovery permits action. If a well-established pattern of violation 
were permitted to continue for several years AFTER discovery, a 
precedent might be set. Even then, the precedent might hold only for 
one publisher rather than leading to a reinterpretation of the law in 
response to the opportunities and challenges of a new medium.

The most likely change to the law that I can imagine in that 
circumstance might be a kind of common law adjustment like the 
doctrine of customary use that applies to the use of private roads. 
If one uses a private road for a certain length of time in the full 
knowledge of the owners, and if this use is not challenged nor the 
right of privacy asserted, in many cases, the right to use is 
established under common law. This affects only the specific road and 
the specific users. It does not affect all roads, now all users. 
However, this has no parallel yet in law applicable to information 
and publishing. Copyright law remains the same for new media as for 
old.

Some of the posts to the list argue against this on moral or ethical 
grounds. I will not take up these issues. The law is the law, and on 
this issue, Jeremy is correct. There is no point saying it is "good" 
to send these articles out from a publisher's Web site, but "bad" to 
resend them to AIR-L. It is a violation of copyright. One imagines 
the possibility of an interesting technical argument on the 
possibility of posting an article direct from a publisher's Web site 
to a discussion group, but the basic principle stands. The publisher 
owns copyright. The owner of copyright has the right to decide what 
use will be made of his or her property with the sole exception of 
fair use.

The principle of fair use is clear and well established. The 
specifics of application are in some cases ambiguous, but the purpose 
is clear. Fair use governs the use of copyrighted materials for 
purposes of scholarship and review. This includes an appropriate 
amount of quotation and reproduction for comparison and analysis. The 
question of an appropriate amount is often the issue at hand in legal 
cases. This question is generally considered in terms of the length 
of the entire piece, and the purpose at hand.

Scholarship includes research. Does participating in a discussion 
group constitute research? In some cases it does. That does not seem 
to be the general case here. This is a general discussion list. 
People come here to post research requests and to engage in debate. 
There is also a fair amount of conversation, information transaction, 
and even good-natured banter. The comparison would be to an academic 
conference. A conference is the site of some research activity, 
specially the report of findings. Attending a conference is not 
itself a research activity except in the case of a specific, focused 
research conference. Those are rare.

Discussion lists that are restricted to research are also rare. They 
are generally closed. All subscribers are generally members of the 
research group for which the discussion list is established. This is 
not the case here.

AIR-L is a discussion list, not a research colloquium.

Beyond this, there are issues in copyright laws that govern fair use 
even for the purpose of research.

First, copyrighted materials are generally acquired under the terms 
established by the owner.

When we use books, for example, we buy them. We do so at the price 
set by the publisher, or used from a previous owner in a chain going 
back to the original purchase. There are two notable exceptions. One 
involves review copies supplied direct by publishers to scholars as a 
courtesy at the discretion of the publisher. The other involves 
illegal copying. Almost all of us have from time to time made an 
illegal copy of an entire book or article under pressure of time or 
the difficulty of finding a copy to buy. Even so, we know this is 
illegal and we do not hold it as our right. Rather, we excuse our 
failure.

Second, copyright law was established to protect the interests of the 
copyright owner as well as to promote scholarly access.

The purpose of copyright is defined in the laws of the several 
nations that establish copyright laws. Under the Constitution of the 
United States, copyright law is established in Article I, Section 8, 
-- Powers of Congress.

The constitution states that congress shall have the power to 
"promote he progress of science and useful arts, buy securing for 
limited times to authors and inventors the exclusive right to their 
respective writings and discoveries."

The purpose of copyright law is to encourage scholarship by granting 
authors the benefit of their work. This right is exclusive. It 
supercedes almost all other rights. The author alone may determine 
what constitutes benefit. An author might establish weird conditions. 
For example, an author might permit a work to be heard only once a 
year from an oral performance of the manuscript. The conditions may 
be limited to reading the manuscript aloud only on the third Sunday 
after each vernal equinox. The conditions might require that the 
manuscript only be read by a scholar employed at a specific 
university who reads the work while standing on one foot dressed in 
full academic regalia but wearing a hat shaped like a fish. Other 
scholars at the same university might be permitted to hear the work 
under the same conditions but not to inspect the manuscript. The 
terms of copyright law allow the author to establish such a 
condition. The word "exclusive" limits this decision to the author, 
and it applies to anyone who acts by proxy for the author by 
acquiring or exercising control over copyright.

In practice, most authors wish their work to be read widely.

The fair use exemption permits selective use. However, in the 
admittedly hypothetical case stated here, fair use would never arise 
because the manuscript itself would never be made available for 
comparison.

Fair use is somewhat circumstantial, and many cases of copyright law 
have been argued on precisely here fair use begins and ends.

Third, scholarship and research do not under any circumstances 
include the right to republish copyright materials in their entirety 
unless specific permission is granted.

We may acquire 500 articles from the New York Times, subject them to 
content analysis, and report our findings. We may even quote selected 
passages for comparative analysis. We may not reprint the full text 
of those five hundred articles.

Fourth, when a copyright owner establishes clear guidelines for use, 
the law requires us to respect those guidelines.

A good example will place this in context. The translators and 
publishers of the Bible intend it to be as widely read and used as 
possible. In its copyright management of the New International 
Version Study Bible, for example, Zondervan Publishing both 
encourages and governs use through specific terms.

The copyright notice of the NIV Study Bible (Barker, et al.: 1995: 
title leaf) states, "The NIV text may be quoted in any form (written, 
visual, electronic, or audio), up to and inclusive of five hundred 
(500) verses without express written permission of the publisher, 
providing the verses quoted do not amount to a complete book of the 
Bible nor do the verses quoted account for 25 percent or more of the 
total text of the work in which they are quoted."

One may quote extensively from the lengthy book of Genesis. One soon 
runs into difficulty with Jonah. Jonah is the shortest book of the 
Bible. It has only four chapters and 47 verses.

Some authors encourage use but copyright to protect the integrity of 
their ideas. Buckminster Fuller did this. So do I. Most of my 
manuscripts contain as notice such as this:

This is my choice. I believe ideas ought to circulate widely for 
discussion and debate. As a scholar with a full-time job who benefits 
from wide use of my writings, of course, my interests are at variance 
with the interests of a free-lance author or a publishing firm.

To summarize, AIR-L subscribers are clearly violating copyright law 
by posting articles without permission.

Every list must address the question of local custom. Some lists 
agree to break the law. Technically, the universities or 
organizations that host the list become responsible for this breach 
of the law.

Virginia Tech has a policy against this. Jeremy writes, "It is my 
understanding that under the current policy of this university, which 
owns the network that this computer plugs into, that I, as systems 
administrator, cannot allow things that could be interpreted as 
violations of copyright to continue."

We are guests of his university. If his university had a different 
policy, it would not change the law, but it would open a different 
arena for practice. The law is clear, the policy is clear, and we 
ought therefore to respect both in our behavior.

When I queried the list to ask about opinion and custom, I did so in 
full knowledge of the law. While I commit minor sins against 
copyright law, as many scholars do, the law has valid purposes and I 
respect its intent. Even when I break copyright law, I do so - 
perhaps paradoxically - by preserving all copyright data and relevant 
notices of ownership.

In this case, Virginia Tech has a policy. This policy applies to 
AIR-L. I respect this and I will abide by it in future postings.

While there are interesting debates to be held on the possibly 
flexible boundaries of research practice or the customary use (and 
abuse) of copyright in the new media, the law itself is relatively 
clear. While there are deeper and better explanations, I hope this 
short review is helpful in clarifying issues to readers of the list.

Best regards,

Ken Friedman

References:

Barker, Kenneth, Donald Burdek, John Stek, Walter Wessel and Ronald 
Youngblood, editors. 1995. The NIV Study Bible. Grand Rapids, Mich: 
Zondervan Publishing.

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Ken Friedman, Ph.D.
Associate Professor of Leadership and Strategic Design
Department of Knowledge Management
Norwegian School of Management

Visiting Professor
Advanced Research Institute
School of Art and Design
Staffordshire University

Norway

+47 22.98.50.00 Telephone
+47 22.98.51.11 Telefax

Home office

Byvaegen 13
S-24012 Torna Haellestad
Sweden

+46 (46) 53.245 Telephone
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email: ken.friedman at bi.no

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