60
Photocopying Books
January 10, 1997
From time to time I have included information in Taking Stock from the American
Society of Journalists and Authors (ASJA) Contracts Watch which I feel will be
useful to photographers. Now ASJA has put their Contracts Watch material online
with new updates about once a month. This report is filled with information on
freelance contracts, electronic rights and copyright particularly related to the
magazine and newspaper business. Their URL is:
http://www.asja.org/cwpage.htm. The following information appeared
recently.
A U.S. Court of Appeals has confirmed a lower court ruling: Photocopying chunks
of books and articles to sell as university coursepacks is not "fair use." Done
without permission, it is copyright infringement.
The 8-to-5 full-court decision in the 6th Circuit favors three book publishers
who sued a Michigan copying service and its owner, but it does not necessarily
favor authors and photographers who earn their living from producing the
published materials.
The Michigan copying service has made permissionless coursepacks the keystone
of its marketing strategy. The service advertised speedy, cheaper service for
professors because it did not clear permissions for copying as much as 95 pages
(30 percent) of a published work for inclusion in quickie anthologies
custom-made for class assignments.
The case has received wide attention in publishing circles. Writers' groups
supported the publishers with a "friend of the court" brief to rebut a defense
statement signed by more than 100 academic authors who agreed that money was not
a primary motive for their writing.
The brief from the Authors Guild, the American Society of Journalists and
Authors, the Text and Academic Authors Association and the Authors Registry
countered that tens of thousands of writers who do write for money produce works
-- academic and general -- likely to be included in coursepacks, and that income
from photocopying licenses is very much part of their incentive to write.
The owner of the copying service reportedly has vowed to appeal to the U.S.
Supreme Court.
Right Conclusion For The Wrong Reasons
ASJA and many other writers groups believe that in the end, the judges reached
the right conclusion, but on the way they got one major point dead wrong.
The statement by the writers groups said in part, "We applaud the decision of
the U.S. Court of Appeals for the Sixth Circuit in 'Princeton University Press
v. Michigan Document Services, Inc.'
"But we must point out that in considering incentives to produce copyrighted
works, the judges seem to have seen only one side of the author community -- and
a narrow side at that. They accepted as representative the statement signed by
100 academic authors that they are more interested in dissemination of their
writing than in what their work may earn. Thus, the judges ultimately came to
their decision in favor of the publisher plaintiffs by emphasizing only
publishers' income from reuse fees, and ignoring authors' earnings as an
incentive to write.
"The decision also misstates when it said flatly, 'It is the publishers who
hold the copyrights, of course.'
"In fact, except for certain types of publishing, most authors retain copyright
in their works. And regardless of who owns copyright, under contract many
authors share in subsidiary income earned by books and articles -- a 50-50 split
is typical -- or retain entirely secondary rights such as the right to license
photocopying.
"If lawyers for the defense found 100 authors to say they want their work to be
freely copied because they don't write for money, we assure the court that many,
many authors would gladly testify otherwise. As we put it in our 'friend of the
court' brief in this case, 'What else could account for the immediate impact of
the Authors Registry, in which over 50,000 authors are registered for
collection, accounting and payment of royalties and fees?"'