RE: Fair use (RE: electronic journals CCC)

[Paul Burry <paul.burry@techbc.ca>]

You make some excellent points here, however, the argument about "the
bottom line" is perhaps not as straightforward as you suggest. For me the
issue is not simply the tension between different perceptions of
"financial risk of infringement," but the ridiculously exorbitant sums of
money publishers demand (and get) to cover this risk.  In other words,
it's MY bottom line I'm worried about, not theirs. What I object to is
when that guy in the candy store starts charging $20.00 for that handful
of Hershey's Kisses, in order to protect himself from the kid who might
steal a few. Then you realize that no one else is selling those Hershey's
Kisses and he has exclusive rights to distribute.  Now that analogy is
starting to sound more like what libraries are facing!!

Paul Burry
Information Services Support Specialist
The Portal
Technical University of British Columbia
paul.burry@techbc.ca
(604) 586-6019


-----Original Message-----
From:	T. Scott Plutchak [mailto:TSCOTT@LISTER2.LHL.UAB.EDU] 
Sent:	Saturday, May 12, 2001 9:12 PM
To:	liblicense-l@lists.yale.edu
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