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
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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)