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RE: What does Tasini mean for us librarians?

I think there would be some fairly significant problems for libraries
resulting from the two decisions about authors' rights, the 2nd Tasini
case and the Ryan v. Carl case were it not for one fact: the authors who
filed the suits seem to have been particularly irked by the attitudes of
the defendants (the newspaper and magazine owners and electronic database
owners in Tasini and the UnCover service in Ryan) that they owed the
authors nothing.

I have observed since these two suits came out that the National Writer's
Union considers UnCover and CCC its buddies now, as both organizations are
working closely with NWU to find authors to whom royalties are due and
make every effort to pay them. Good faith/bad faith seems to be a critical
issue, over and above whatever the law might say are the issues.

For example, a library that relies on a licensor to guarantee that the
licensor had the rights in a particular article to license to the library,
or that CCC had the rights to grant permission to make a copy of the
article for a course reserve, might *technically* be liable for
infringement if it makes a copy and pays a royalty to the wrong entity
(the publisher instead of the author), but the library was never in a
position to change the practice of publishers or aggregators ignoring the
fact that authors do not always assign copyright and sometimes are the
proper parties to whom payment should go. Libraries have no way of knowing
in any case what the arrangement was between the author and the publisher
(beyond the "norms" for various industries), and they don't make a profit
off of the work of the author, but these other entities, the publishers
themselves and UnCover, do have some ability to discover who the payment
should go to, and now the incentive as well, to find out before they make
a profit on the work.

Additionally, the writers finally have the legal incentive (affirmation of
their rights) to get together and make figuring out who owns what easier.

This is not to say we could not be sued, or that we might not have
liability, only that the proper mix of incentives to sue us and payoffs
for winning are missing.

Georgia Harper
University of Texas System
Office of General Counsel
Gharper@utsystem.edu <mailto:Gharper@utsystem.edu> 
512 499-4462 (voice) /4523 (fax)

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