J. Morris, a visiting instructor at the University
of Michigan Law School, and Jonathan Franklin,
a law librarian at the University of Michigan Law School.
The views expressed are solely those of the authors and not
of the University of Michigan Law School.
On June 12 a federal appeals court in the midwest will hear
[heard] arguments concerning an attempt by copyright holders
to infringe on the rights of professors and students to use
coursepacks. (Yes, you read that right. It's not backwards.
It is the copyright holders who are doing the infringing.)
The question the court needs to think about is: Can professors
be trusted to be fair when they take excerpts from other authors'
works to create course materials? The court's view could affect
more than just the academic community.
When professors choose readings for their courses, their
first choice is generally a single text or a small group of
texts. But sometimes, especially for courses on the newest
theories or hottest topics in a field, there are no texts
that make all the points the professors want. Then, they select
excerpts from a variety of sources.
The professors have direct as well as indirect reasons to
choose "fairly" in making these selections. The direct reason
is simply the professors' pedagogical motivation: to expose
students to different perspectives on a range of issues, shorter
pieces, and more of them, are better. (If one book said it
all, it would be much easier for the professor to tell the
students to buy it and be done with it.) The indirect reasons
to choose fairly follow from the fact that the professors
live in a community of scholars in their particular field.
This can be summarized by two simple notions: "what goes around,
comes around" and "the golden rule." A professor who "steals"
royalties from a colleague by photocopying a large fraction
of a book rather than assigning the students to buy it could
face repercussions in professional advancement and other matters
governed by peer review. And since professors often are authors
of scholarly works, they will act fairly toward other authors.
In pre-copymachine days, the professors' selections were
placed on reserve in the library. Nobody said that this infringed
copyright. Later, as copymachines became standard library
equipment, students could make photocopies on the spot so
they could do the reading later or elsewhere. Still, nobody
said that the students were infringing copyright.
Then, when professors began assembling the excerpts into
coursepacks, book publishers decided to try to make money
where they never had before. They began to tell copyshops
that making coursepacks was copyright infringement. Then they
sued. Their first target was Kinko's, a nationwide copyshop
chain. The publishers won the first round, and Kinko's decided
to get out of the coursepack business rather than appeal.
The photocopy community got the message, or what they thought
was the message: photocopying from books was copyright infringement
every time, all the time, no matter what, no matter by whom,
no matter how much. Better to refuse to do the copying than
to risk a lawsuit.
How does this affect coursepack-making professors? They
encounter the ever-growing permissions bureaucracy. They have
to spend time obtaining permissions. If the permission is
denied or conditioned on an excessive royalty, then they must
search the literature for an alternative selection. Their
time is wasted, their teaching decisions are skewed; and altogether
too many resources are devoted to something that does not
need to be done.
Meanwhile, who is in this bureaucracy dedicated to "enforcing"
copyright? People working for copyshops, and people working
for the publishers or their collectives. They have scant understanding
of or interest in the limits on the scope of protection of
a copyright -- the concepts of public domain or fair use,
for example. And the actual authors are rarely, if ever, involved.
If they were, royalty-free, immediately-granted permissions
would probably be the rule for coursepack excerpts. To scholars,
the wider dissemination of their ideas is of far greater importance
than the chance to make a few pennies off students for a photocopied
The founders of our country understood this trade-off, too,
when they wrote the copyright provision into the Constitution.
That provision empowers Congress to PROMOTE PROGRESS by granting
authors limited rights to their writings (copyrights). Copyright
law strikes a balance between yesterday's authors and today's
progress in a doctrine called "fair use," which has been recognized
by the courts since at least the mid-nineteenth century. In
1976, when the copyright law was recodified, "fair use" was
explicitly included in the statute and "teaching (including
multiple copies for classroom use)" was explicitly included
as an example of fair use.
The publishers of academic works urge that they can not
afford to publish unless they obtain fees for photocopying
of coursepack excerpts. Perhaps, but they have no right to
such fees under our present copyright law. In any event, academic
publishing and coursepacks may both be dinosaurs: authors
can self-publish on the world wide web and professors can
use the web to post assigned materials for their students
on password-secured sites. The scary thought, however, is
that if the publishers succeed against copyshops now, they
may well convince the internet services or the telephone company
to be "copyright police," too, so they can collect permission
fees every time a student dials up an assignment.
If this is the balance Congress wishes to strike between
yesterday's authors and today's progress, Congress can act.
The legislative process would allow a dialogue between all
interested parties: professors, students, authors, publishers,
and the various industries that are or will be pressed into
service to enforce copyright. A fight between a few publishers
and one little copyshop in Ann Arbor is not the right place
to resolve the problem.
If the appeals court decides in favor of the publishers
in this case, the bureaucracy of copyright permissions will
become bigger and more invasive. This is a sorry misallocation
of resources. Far better to trust professors to take only
an amount that is FAIR when they use other authors' material
in their coursepacks. All the incentives on the professors,
positive and negative, make them trustworthy. Letting the
professors decide what is "fair" is not leaving the fox to
tend the chickens: it is leaving one of the chickens to tend
the chickens. This is best for the chickens -- and the eggs,