RE: Fair use (RE: electronic journals CCC)

["T. Scott Plutchak" <TSCOTT@lister2.lhl.uab.edu>]

There's an additional point to this whole discussion that hasn't yet been
mentioned -- there's more at stake than the practical financial risk of
infringement.  There's a principle.  In this context, it is illuminating
to go back to the Williams & Wilkins vs. NLM copyright case of the late
sixties & early seventies.  That battle went on for almost a decade and
both sides recognized that the actual amount of money at stake was quite
small.  What was important to W&W was the principle that EVERY use of
copyrighted material ought to be paid for (remember that this case was
fought before Fair Use was codified into law).  What was important to NLM
was the principle that the general welfare requires that the public be
able to make some limited use of copyrighted material without having to
pay.

These are quite irreconcilable views and they underpin the struggle over
intellectual property that has been going on for the last quarter century.
Many publishers believe that it is simply wrong that they should have to
allow some uses of the material that they own without being compensated.  
It doesn't matter that the actual dollar loss may be small.  The guy in
the candy store rightfully objects when kids sneak off with a handful of
Hershey's kisses.  It doesn't affect the bottom line at all, but the
proprietor feels that his or her rights have been violated.  And in the
case of the candy store, that's quite right.

But we treat intellectual property differently.  Think of the rationale as
somewhat like that for taxes.  Everyone (with a decent income) has a
responsibility to pay taxes, because everyone's success is to some extent
dependent on the infrastructure that society provides.  This obligates you
to give something back to the general good.  Similarly, we recognize that
intellectual property is only created as an outgrowth of knowledge or
creativity or whatever that's already out there.  And in order to keep the
cycle going, the general good demands that some use of that intellectual
property be returned, without recompense, to the public.

Lucretia McClure, director emerita of the medical library at the
University of Rochester and for many years the copyright referent for the
Medical Library Association (I think of her as the Yoda of medical
librarianship), told me awhile back of a conversation that she had with a
representative of the publishing community when she was participating in
the CONFU deliberations of a few years ago.  This guy told her that
publishers had come to believe that they had "given away the store" in
acceding to the guidelines enshrined in the CONTU principles of the
mid-70s, and they were determined that it would not happen again with
electronic materials.  Hence the tough stand that many publishers take.

The point of all of this is that our argument from economic effects is,
for some publishers at least, somewhat beside the point.  It's not a
matter of whether or not they are really at grave financial risk, it's a
matter of principle.  And I think that's partly where we have to pitch our
argument as well.  It's not enough to say that we should have Fair Use
rights because it's not really going to damage the publishers' bottom
lines.  We need to have Fair Use rights because the public welfare demands
it.

T. Scott Plutchak
Director, Lister Hill Library of the Health Sciences
University of Alabama at Birmingham

tscott@uab.edu