Whom Do You Trust?

by Roberta 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 excerpt.

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, their students.