 The Clarinet BBoard
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Author: Ken Shaw ★2017
Date: 2012-05-21 13:27
An important decision on fair use of copyrighted material has just appeared in the case of Cambridge University Press v. Becker http://scholar.google.com/scholar_case?case=14641893804395056832&q=cambridge+georgia+state+fair+use&hl=en&as_sdt=2,33&as_ylo=2012&as_vis=1. It involved "course packs" of excerpts from copyrighted works, assembled by college profs for students' study. It's not a typical case because it involved a non-profit school, for which there are special rules, but it's illuminating nevertheless.
It's a gigantic opinion (187 pages as a Word document). The first quarter lays out the rules of law, much of it interesting only to copyright lawyers. The rest is an excerpt-by-excerpt analysis, applying the legal criteria to each infringement claim. It shows the kind of painstaking thought that must go into each claim, and of course each one is after the fact, in hindsight. Still, as I read it, I got a feel for how things work. It's like practicing scales.
For the nitpickers among us (we know who we are), it's fascinating.
Ken Shaw
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Author: GeorgeL ★2017
Date: 2012-05-21 16:46
Disclaimer: I am an 8 year retired intellectual property lawyer who does not attempt to keep up with IP law.
A real thumbnail summary based on reading a few pages at the beginning and the end of the decision:
A university (including its regents, who set the policy on use of copyrighted material) was sued because professors distributed to students portions of copyrighted material for use in high level undergraduate and graduate classes. The source material was usually expensive books of which typically less than a chapter was distributed to students.
From the last few pages, it looks like the university won on all but 5 instances. The court applied the four tests for fair use from 17 USC 107 to each alleged infringement. The gist of the process seems to be that since these works tended to be very expensive, it is unlikely they would have been used by the class but for the copying, so there was no adverse effect on the market for these books. (Too me, that is strange reasoning, but it might be standard logic in copyright cases.) If less than 10% of the material was copied, the holding seemed to be for the university.
If someone wants to slog through the middle 185 pages and come to another conclusion - have at it. I don't see too much connection between this decision and the type of copyright infringement issues which arise in music, where typically an entire piece of music is copied, often not in an non-profit educational setting (universities have good lobbyists and are well-taken-care-of in intellectual property law). Music copyright issues also include performance rights, which do not seem to be an issue in the cited case.
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Author: clarinetist04
Date: 2012-05-21 17:03
It seems, if you go through the decision, that they made decisions independently for each and every book and professor. SO....
They weighed the four criteria for proving fair use:
1) The use: was it for commercial purposes or for nonprofit educational purposes?
2) The nature of the copyrighted work.
3) How much was copied (they determined fair use was less than 10% if the book was less than 10 chapters or 1 chapter if the book had more than 10 chapters).
4) Whether the use of the copied work had an effect on the market value of the work.
Typically, 1 and 2 went almost in every case for the defendant (the university). 3 went about 50/50 but it was more or less a cut and dry criteria. 4 was more of a tossup and they went through book sales and royalties and permission income and all sorts of stuff to determine #4. Then they weighed these. There wasn't a really straight forward weighing. If #4 was in favor of the plaintiff (publishers) the magnitude had a big effect on the overall decision. I read the decisions for about half of them and they were largely in favor of the defendant. A couple went in favor of the plaintiff.
In the case where this applies to printed music, I assume the criteria for fair use are the same. And my gut tells me that one could win #1, #2, and in rare cases #3 (maybe for operas or very long works and the copied excerpts were short - how does this apply to copying instrumental parts for symphonic/operatic works?). #4 would be equally difficult to determine but I feel would be easier to prove in the case of printed music.
Interesting case.
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