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.

 

6 Responses to Choosing between reform and revolution

  1. Sandy Thatcher says:

    True, the mostly “factual” nature of academic works would weigh in favor of finding use of them to be fair, but Kevin’s analysis of incentives leaves out a key fact: academic authors’ chief incentive is to advance scholarship in their fields and, by doing so, gain tenure and promotion. But this requires a process of peer review, which to date has been paid for and managed by academic publishers and most especially–because their peer review process for monographs is the most thorough and complex–university presses. Someone has to pay for this service. If Kevin favors having it fully subsidized, that’s all to the good. But the reality is that universities are showing no signs of wanting to do so–despite the rhetoric about “open access”–and thus income streams must be generated to pay the costs. These streams include charges for use of massive amounts of materials in course packs and e-reserve systems like Georgia State’s. What is happening in these systems is no “value added” or anything that might be construed as “transformative” (under the first factor) but simple production of more copies the way any pirate press would produce more copies to distribute in the marketplace in competition with the original publishers. I’m all in favor of pushing the application of “transformative use” more in academic contexts because that, as Judge Pierre Leval famously said, is the true “heart” of fair use as it was traditionally construed, as an insurance that later scholars could build on earlier scholars and advance the progress of knowledge, which is the Constitutional purpose of copyright law, after all.

  2. Kevin Smith says:

    Whether or not the value added by publishers to the volunteer system of peer-review done by academics justifies the high prices of academic books and journals is an interesting debate, but it is not the one being raised by this post. For peer-review to have any relevance at all on the impact of a liberal application of fair use on incentives for academic authorship, one would have to believe that the small reduction in income from the secondary market for permission fees would cause the current peer-review system to collapse. I find that contention incredible. For scholars to lose the benefit of peer-review, which they, after all, provide for their own community, major publishers like Oxford and Sage (the very ones who are suing Georgia State) would have to be on such tenuous footing that a reduction in permission fee income would mean their demise. The huge profit margins such commercial publishers report makes that fear ludicrous. If their are some marginal publishers that might fail because of the loss of some of these fees, it is unlikely that those failures would have a major impact on the peer-review system, which will, in any case, need to transition away from dependence on publishers as the scholarly communications system evolves. For more on that topic, the upcoming discussion of the article mentioned above, which advocates for the elimination of copyright entirely for academic works, and a new model for financing their dissemination, will be very relevant.

  3. anonymous says:

    If intellectual property were to appear in coursepacks as fair use, students would still have to pay in most cases to use this content – the revenue would simply go to middlemen such as Kinkos, and the already strapped academic presses would just lose another of their meagre revenue streams.

    So – no benefit to the student, just the middleman, and another nail in the coffin of scholarly communication. Sounds like a horrible plan.

  4. Kathleen Wallace says:

    Electronic reserve is different from course packs, because as far as I know, no one, except the secondary, permissions fee market makes any money. Students access articles electronically, download pdfs and then students either print them at their own expense, or not. If universities could do E-reserves and make electronic course packs without having to worry about the permissions market, then there aren’t really other “middlemen” here (e.g., Kinko’s) as far as E-reserve goes. At this point, university libraries and faculty already do the work that would be involved in putting together such packs electronically. The big expense and road block in doing so is the permissions market. BTW, for journal articles, I don’t know of any academics who make any money from that market. The peer review system is largely done on a volunteer, uncompensated basis. When there is compensation it is nominal. Kevin is right that I can’t see how that would be compromised by anything he is suggesting. The problems of university presses are really quite different from what Kevin is talking about.

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