Educational Fair Use in Copyright: Reclaiming the Right to Photocopy Freely

Copyright owners who are affirmatively engaged in diminishing the scope of educational fair use are overwhelmingly publishers, rather than authors. These publishers attack educational fair use in several different, somewhat internally inconsistent ways. First, they argue that fair use reduces the profitability of their publications, and thereby reduces monetary incentives to undertake the publication of new works. In this way they characterize educational fair use as a threat to the creation and dissemination of future works of scholarship, rather than an escape valve through which current knowledge embodied in prohibitively expensive books and periodicals can leak to the impoverished. Publishers make this argument despite clear evidence that academic writers do not require monetary incentives to produce scholarly works. In fact, many academic writers prefer a broad definition of fair use, which makes others\u27 works available to them, and perpetuates wide dissemination of their writings, even if it costs them royalty payments. Secondly, publishers like to cloak their self-interest by regularly and hypocritically raising the specter of the impoverished author, starving in a garret because educational fair use deprives her of the royalties she needs to live on. However, if authors are underpaid, it is usually because publishers use their strong bargaining positions to negotiate publishing contracts that are unfavorable to authors. Publishers have not demonstrated that the photocopy royalties they collect brighten the financial picture of individual authors in any significant way. Third, publishers like to characterize their profits as rewards for risk taking. Whether publishers actually take a lot of risks in the field of academic publishing is questionable. Nonprofit academic publishers are often subsidized. Commercial publishers are free to undertake only projects that are likely to be profitable. They can recruit name scholars to author or co-author textbooks; they can reissue popular textbooks in new edition formats to prevent competition from used book sales. They can heavily market a tome, or decline to do so. The same work that is marginal with respect to book sales is likely to be similarly marginal with respect to permission fees. Books that sell a lot of copies are the books that are most likely to generate significant permission fees, unless a publisher chooses to deny permission to photocopy excerpts in order to maximize the number of students who are required to purchase the entire book. An author who has devoted two years of her life to a manuscript has arguably invested a lot more in a book than her publisher, even though her time does not intuitively convert into high dollar figures. Yet, any preference she may have with respect to maximizing dissemination of her work, rather than its profitability, will largely be ignored, or even contravened. Over the past decade the scope of educational fair use has been dramatically compressed by judges who ignore the external benefits of fair use, and respond only to the lost dollars publishers ascribe to the doctrine. Publishers in turn have used favorable court decisions and the threat of expensive litigation to coerce commercial photocopiers to pay permission fees for the privilege of making any copies at all, whether or not the use might be a fair one, and in some cases even when the work is not eligible for copyright protection. Fearful and litigation averse educational institutions attempt to simultaneously mollify publishers and protect themselves by adopting copyright policies that define a minimal scope of educational fair use, and make individual faculty members liable for any infringing photocopying activity outside of this petite orbit. The incredible shrinking affirmative defense of educational fair use is being compacted into ineffectuality by profit minded copyright owners, whose neutral desire to maximize revenues fosters intense opposition to the doctrine of fair use. Diminution of educational fair use renders educators susceptible to liability for copyright infringement for engaging in unremarkable acts of duplication and distribution of idea-bearing materials for educational purposes. The ability of educators to use and disperse information, and to expose students to a wide range of perspectives on any given subject, is threatened by the ongoing contraction of the scope of educational fair use. However, decompression of the doctrine will likely only be effectuated by appropriate Supreme Court action