Re: Fair use (RE: electronic journals CCC)

["Anthony Watkinson" <anthony.watkinson@btinternet.com>]

It seems to me that Scott Plutchak's analysis is in many ways correct
especially where he understands that the argument is not just about money.
However is he not wanting to overturn international copyright agreements,
where there is attempt to balance copyright protection and exceptions to
copyright? I am thinking particularly of the Berne three-step test. In the
new European Directive the three-step test has (as I understand it) been
made central to the treatment of exceptions. Judging by the commennts
relayed to this listserve the Directive has been welcomed by European
librarians and it is (as I have pointed out here also) been broadly
accepted by Publishers. Some might want to disturb the balance rather
trying to make it applicable to the digital as well as the print
enviroment but this is not the position of publishers. Should it be the
position of librarians?

Anthony Watkinson
14, Park Street,
Bladon
Woodstock
Oxfordshire
England OX20 1RW
phone +44 1993 811561 and fax +44 1993  810067


----- Original Message -----
From: T. Scott Plutchak <TSCOTT@LISTER2.LHL.UAB.EDU>
To: <liblicense-l@lists.yale.edu>
Sent: Sunday, May 13, 2001 5:12 AM
Subject: RE: Fair use (RE: electronic journals CCC)


> 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