Monday, August 28, 2006

Copyright Myths

Recently, a friend, who will be teaching an exegetical course in the near future, posted an item on his blog (I used to provide a link, but it's no longer valid) asking for input on which of three commentaries he should use for his class. I posted a comment, not intended to answer the question, but to offer an option, suggesting that if he wanted to use one book as the "main" text, but use parts of the other two, he could copy those sections into a course reader, providing that he obtained permission to do so from the rightsholders, and noting that the rightsholder of one of the commentaries in question was particularly difficult to get a response from. I do this kind of thing all the time as part of my work here at the seminary, and thought it might provide a helpful option.

Another comment soon appeared, from someone I do not know, who suggested that, so long as no more than 10% of the work was used, seeking permission from the publisher was unnecessary. I was stunned, although I probably should not have been surprised at all, as I've seen this myth before.

No doubt the intended-to-be-helpful comment arose out of a misunderstanding of "fair use" doctrine, which is part of U.S. Copyright law. For a work to qualify as "fair use," four items are considered (this list is copied straight from Copyright.com):
  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 copyright protected work as a whole.
  4. The effect of the use on the potential market for or value of the copyright-protected work.
Item #3 does indeed consider the amount of work, but note that it does not state a specifc percentage, such as 10%. If a professor did indeed copy less than 10% of a work, it is entirely possible that this use, if brought to court, would ultimately be ruled "fair." But such a ruling is by no means automatic, especially if points 2 and 4 were considered "not fair." (Item #1 is not mentioned merely because the work in this scenario is assumed to be for "educational purposes." But even here, "educational purposes" does not automatically mean that use is "fair." All four items must be considered together.)

A rather famous court case (in academic circles) on this matter is noted on this link:
Eight book publishers sued Kinko's Graphics Corporation for copyright infringement, alleging that Kinko's violated their copyrights by photocopying copyright-protected materials to create university coursepacks. Kinko's unauthorized copying covered a wide range of materials including text, trade and professional books. Kinko's argued "fair use" but the court disagreed. All told, Kinko's paid almost $2 million in damages, fees and other costs.
A quick search shows the extent of the use being contested in that case. 12 works which were copied were considered to be infringement.
  • Work #1: 22 pages used. Work is roughly 430 pages. Total percentage of work used: About 5%, but because the pages copied represented an entire chapter, "The amount copied [of this] relatively recent book weighs against defendant."
  • Work #2: 23 pages of a 120 page out-of-print work. Total percentage of work used: About 19%. Although the work was out-of-print, "the amount copied weighs heavily against defendant."
  • Work #3: 33 pages of a 146 page out-of-print work. Total percentage of work used: About 23%. See book #2.
  • Work #4: 53 pages of a 323 page book. Total percentage of work used: About 16%. Two full chapters of an eight-chapter book.  What were they thinking?  Verdict: "The amount copied weighs against defendant."
  • Work #5: 14 pages of 196 page book. Total percentage of work used: About 7%. The pages copied constituted a chapter of the book. Verdict: "The amount copied weighs against defendant."
  • Work #6: 37 pages of 461 page book. Total percentage of work used: About 8%. The Introduction and a full chapter were copied. Verdict: "The amount copied weighs against defendant."
  • Work #7: 40 pages of 531 page book. Total percentage of work used: Under 8%. Yet again: "The amount copied weighs against defendant."
  • Work #8: 20 pages of 375 page book. Total percentage of work used: About 5%. Only half a chapter was copied. But (say it with me now), "The amount copied weighs against defendant."
  • Work #9: 22 pages of 172 page book. Total percentage of work used: About 13%. No surprise here: "The amount copied weighs against defendant."
  • Work #10: 100 pages of 751 page book. Total percentage of work used: About 13%, including three whole chapters. This is another "what were they thinking?" example. "The amount copied weighs against defendant."
  • Work #11: 65 pages of 376 page out-of-print book. Total percentage of work used: About 17%. This one was so overwhelming that the court said "The amount copied, despite the fact that this book was out-of-print, weighs heavily against defendant." (emphasis mine)
  • Work #12: 110 pages of 400 page in-print but out-of-stock book. Total percentage of work used: 27.5%. Verdict: "The amount copied weighs heavily against defendant, despite the fact that the book was out-of-stock."
Of these 12, 7 did, in fact, go beyond the hypothetical 10% guideline. This leaves 5 works that would, theoretically, have been okay according to the poster on my friend's blog. Each of these was also ruled against using the words "The amount copied weighs against defendant."

Furthermore, the case reads, when discussing the "amount and substantiality of the portion used," that "In almost every case, defendant copied at least an entire chapter of a plaintiff's book. This is substantial because they are obviously meant to stand alone, that is, as a complete representation of the concept explored in the chapter. This indicates that these excerpts are not material supplemental to the assigned course material but the assignment. Therefore, the excerpts, in addition to being quantitatively substantial, are qualitatively significant."

In any event, I'm sure the poster to my friend's blog meant well. But this is the kind of misinformation that can get people in academia into serious trouble, and I would seek to avoid having that happen, especially to a friend (who, to be fair, will probably not be doing a course reader at all, but was just looking to pick one of the three books, and call the others "suggested reading" without making assignments require them).

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