A recent article by Steven Shavell called “Should Copyright of Academic Work be Abolished” caught my notice, as I am sure it did for many others, because of the radical question posed in its title, but it ultimately focused my attention on a different article altogether. I hope to have more to say about Professor Shavell’s work in a later post, but here I want to record my initial reaction, which was that copyright in academic works need not be abolished but should be heavily reformed. And the best reform I can think of (short of legislative revision) is the re-evaluation of fair use, based on more attention to the second fair use factor, that is suggested in Robert Kasunic’s article “Is That All There Is? Reflections on the Nature of the Second Fair Use Factor.”
The second fair use factor – the nature of the copyrighted work – is usually treated very mechanically by courts, and sometimes is ignored altogether. When it is discussed, it is in a few sentences addressed to only two issues – whether the work is published or not and whether it is creative or factual. Kasunic, who is Principal Legal Advisor to the Copyright Office, suggests that this treatment seriously undervalues the importance of this part of the fair use analysis. He argues convincingly that the second factor, when examined carefully, offers a wealth of information that could improve consideration of all of the fair use factors. Indeed, one of his major points is that the fair use factors are a guide for fact-gathering, not a mechanical “tally sheet” or scorecard.
If courts pursued the probing questions about the nature of an original work that Kasunic suggests when considering a claim of fair use, the result for academic work would be, I think, truly revolutionary, because those courts would learn how much more leeway should be accorded to academic work than would be appropriate for other types of work. Kasunic argues that part of the scrutiny that should be applied to the original work would ask what the particular incentive structure for that type of work is. When the purpose of copyright law is understood properly, as a mechanism to give incentives for creation, the expectations of the authors and creators are really the only guide for what uses should be compensated and what uses need not be. Thus it is important to ask what the normal incentives for creators of that particular type of work are and what markets supply those incentives. Unexpected markets, or markets that benefit only secondary owners of copyrights rather than authors, are not relevant in deciding if a particular use is fair or not.
When academic work is considered, it is clear that the scope of fair use would be very broad under this more sensitive and sensible analysis. Academics are usually not paid for their most frequent works of authorship, journal articles, and compensation for books authors is meager. Thus the protection of various markets s not necessary for this type of work in order to effectuate the purpose of copyright; incentives for authors clearly come from some place else. Also, it is usually a secondary copyright holder who is trying to protect those markets, which further reduces their value as an incentive for creation. Finally, secondary markets, such as permission fees for electronic reserves and course packs are usually wholly unexpected, and therefore have no incentive value, from the point of view of academic authors. In fact, I once had a faculty author ask me if a check from the Copyright Clearance Center was some kind of scam, so unexpected was the tiny windfall he was being offered.
As Kasunic points out, different types of authorship receive different rights under our copyright law; it is logical, therefore, to also think about fair use differently depending on the specific facts that surround the creation of a particular category of work. Academic works would, in such a fact-specific analysis, be subject to much more fair use than a commercial novel, film or song. Indeed, Kasunic selects as the example with which he closes his article the case of academic authors and fair uses claims for course packs and electronic reserves. Although he does not spell out a conclusion, it is clear from his discussion that the facts uncovered by the searching analysis he recommends would greatly favor a liberal application of fair use for that type of work.
Since an actual case such as Kasunic describes is currently being litigated – the lawsuit against Georgia State University alleging copyright infringement in the distribution of electronic course readings – it is hard to resist reading his article with that case in mind. Kasunic presents, to my mind, a compelling argument that the court should look very careful at why the works in question were created in the first place and focus a fair use finding on the incentives for creation and not extraneous claims for windfall profits made by secondary copyright holders. This would be a sensible application of a factor that has largely been treated as unimportant; it would take seriously the intent of Congress and their instructions to courts when they codified section 107. And it would dramatically increase the likelihood that many of the uses in question at Georgia State (at least those uses that involve academic writings) would be found to be fair use.