Questions & Answers -- Copyright Column

Against the Grain, Dec 2014

By Laura N. Gasaway, Published on 12/15/14

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Questions & Answers -- Copyright Column

Questions & Answers -- Copyright Column Laura N. Gasaway 0 1 0 University of North Carolina-Chapel Hill School of Law , USA 1 Column Editor: Bob Holley, Professor, Library & Information Science Program, Wayne State University , Detroit, MI 48202; Phone: 248-547-0306; Fax: 313-577-7563 Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons Recommended Citation - He and others are concerned that much library material is purchased from Europe and lots of books are printed in China. So here’s my take on it. 1) China is not a concern. U.S. and European publishers are getting their printing done in China. That doesn’t mean the books and journals are sold in China. They are printed and stitched together there. The authorized first sale is somewhere else. This is the same confusion our Commerce Department is falling into with the component parts of iPads manufactured in the U.S., shipped to China for assembly by ill-paid drudges, and then brought back to the U.S. for sale. Commerce counts it as a sale by China and adds it to our dreadful trade imbalance. 2) Parties can agree on the place of sale, and if you look at some of your standard form contracts you will note that the place of contracting has been selected. All any library need do is print a standard form purchase invoice with a condition that the seller agrees the sale is in the U.S. You’re not trying to evade some sales tax that might get those menacing revenue agents stirred up. 3) Why does the library world always assume publishers are slavering to levy an extra tariff? The price is already calibrated to what the market can barely bear and crawls up annually at a rate designed to not give you total catatonic sticker-shock. It is truly inconceivable that European publishers would leap to lay more costs on already near-bankrupt university and public libraries. Taken to the extreme, the publishers would be preventing library circulation and eliminate the sole reason libraries are buying the stuff. 4) And if push utterly came to shove, the U.S. Congress which manages to pass doorstop bills on a too-regular basis could maybe manage to amend the Copyright Act. Questions & Answers — Copyright Column Column Editor: Laura N. Gasaway (Associate Dean for Academic Affairs, University of North Carolina-Chapel Hill School of Law, Chapel Hill, NC 27599; Phone: 919-962-2295; Fax: 919-962-1193) <> www.unc.edu/~unclng/gasaway.htm QUESTION: A university librarian asks why there is a debate over whether fair use is a defense or a right and whether it makes any difference. ANSWER: This is one of the central debates in copyright law and there is not an absolute answer. (Sort of like “what is the meaning of life?”). In law, a defense is something that may be raised by a defendant to defeat the claim made by the plaintiff in a lawsuit. In section 107 of the Copyright Act, in order to determine whether the use is a fair use, courts are directed to evaluate a particular use in relation to four factors. This makes it clear that fair use is a defense to copyright infringement because a court is involved only in the context of litigation. So, fair use certainly is a defense to a claim of copyright infringement, but it is also more. Often fair use is defined as an affirmative defense which means a new fact or set of facts that operates to defeat a claim even if the facts alleged by the plaintiff in the claim are true. In other words, the defendant did make the copies of a protected work, but the purpose of the use, amount of the work copied, etc., are such that a court would find that the use is a fair use, and this defeats the infringement claim. But is fair use also a right? There is a significant difference between a right and defense. A defense is raised only in the context of litigation — in other words, someone has been sued for copyright infringement and then raises the defense of fair use. By contrast, a legal right is a power, privilege, demand, or claim possessed by a person by virtue of law. So, a right exists under the rules of a legal system, such as the law of a country. Sometimes fair use is defined as a privilege rather than a right, but this simply presents a circular argument since Black’s Law Dictionary defines a right as a privilege and a privilege as a right. Individuals who argue that fair use is a right are those who want expanded ability to use copyrighted works without permission of the copyright owner. Copyright holders, however, want to restrict fair use to a defense only. The difficulty in the copyright law is that the statute actually uses the term “right of fair use” in the library provision, section 108(f)(4). It is difficult to know if this was intentional on the part of Congress or was inadvertent, but it certainly has furthered the debate on this issue. This contrasts with section 107’s direction to courts and serves to enhance the confusion. Does the difference betwe (...truncated)


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Laura N. Gasaway. Questions & Answers -- Copyright Column, Against the Grain, 2014, Volume 23, Issue 1,