Copyright Scenarios
A University professor wants to make a collection
of assorted readings available to her students.
Can she have her students buy a course pack from
the local photocopying shop without violating copyright?
Because of a series of copyright cases, the most
famous was against Kinko’s in the early 1990’s,
the practice of compiling course packs has changed considerably.
However, the new rules don’t significantly limit instructors’
choices of texts; rather, the instructor must now seek permission
from the copyright holder and pay license fees when necessary.
Essentially this means that the instructor needs
to compile the course pack materials enough ahead of time
to request and secure permission and that the students will
have to pay a little extra. The instructor should also have
a contingency plan in place in case permission is refused.
Many photocopying shops will handle the copyright requests
for you and include the licensing fees in the price of the
course pack.
The Skinny
In 1982 several publishing companies brought
a law suit against NYU, nine faculty members, and a photocopying
establishment. The Association of American Publishers which
coordinated the law suit on behalf of the publishing companies
sought an injunction to keep the professors from copying course
anthologies. The publishers reached an out-of-court settlement
with the defendants thus requiring the university to appropriate,
promulgate, and invoke more stringent copyright rules.
After the success of the preceding
law suit, more publishers decided to hop on the band wagon
and get their share of what they felt were infringing activities
perpetuated by the academic community. Publishers began targeting
nationwide printing companies such as Kinko's, especially
those near universities and colleges. Then Kinko's defended
its actions by stating that course packets legitimately qualified
under fair use because they were creating them for educators.
However, the federal court resoundingly rejected this notion
(Basic
Books, Inc. v. Kinko's Graphics Corp., 1991) because Kinko's
was making a nice profit, in effect infringing on copyright
holders' ability to make money on their own work. The court
found this to weigh heavily against Kinko's when analyzing
fair use factor number four (effect on the market for the
work). The court awarded the publishers $500,000 in damages
and forced national photocopying chains to rethink their policies
on creating course packs. The effect was that many national
companies stopped making course packs or this decision caused
them to seek permissions from copyright holders when they
did decide to create course packs.
Another Course Pack Incident
For some reason, however, local publishers did
not feel that they would have to follow these same rules.
A group of publishers sued a small photocopying establishment
in Michigan (MDS) for creating course packs because of the
same reasons (Princeton University Press, et al. v. Michigan
Document Services, 1996); the company was infringing on copyright
holders' rights because they were a) not asking for permissions
nor b) seeking a license to use the work. The courts found
that the company was infringing and forced to pay damages.
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