[The Montana Professor 1.1, Winter 1991 <http://mtprof.msun.edu>]

Customized Texts vs. Fair Use

Elizabeth Thompson
Graduate Student
Eastern Montana College

Professors might have had trouble this fall getting permission to copy material they had been accustomed to using. A number of important periodicals, including the Chronicle of Higher Education, the Wall Street Journal, and Publishers Weekly have been closely following a suit brought against Kinko's Graphics Corporation over copyright infringements. Eight big publishers claim that two New York City Kinko's shops, one near New York University and one near Columbia University, illegally reproduced "substantial portions" of 12 books and included them in anthologies made for professors.

Photocopying has become an unquestionable part of academic life, and the problem of not being able to copy what one wishes is not just one of passing inconvenience. It has to do with how new technology is affecting the publishing marketplace and the traditional roles of authors, publishers, and public. In the middle of the confusion is the ambiguity of law and uncertainties about how it will govern the interaction between the three.

Computers and photocopiers have dramatically changed the way college textbooks are published because professors now can custom-design inexpensive textbooks in limited editions. "Course packets" are often only photocopies, but computers now make it possible for a professor to order chapters from a publisher's database to generate a laser-printed paperback ready for classroom distribution within a few days. According to the Wall Street Journal (16 August 1990), retailers estimate that customized books already make up about 10 percent of college texts, and the percentage is increasing. In response to the trend, copy shops are turning into bookstores, and bookstores are starting to do publishing. Kinko's "Professor Publishing" service which creates anthologies from course reading lists, channels hundreds of thousands of dollars away from bookstores and publishers.

A defendant's principal defense against charges of copyright violation is "fair use." The Fair Use Doctrine, which allows limited copying for such purposes as "criticism, comment, news reporting, teaching...scholarship, or research" was given statutory recognition in 1976 within 17 U.S.C. Section 107. (See Ideas in the Workplace by H. Clarke Anawalt, Durham, North Carolina: Academic Press, 1988, for a more detailed explanation of copyright law.)

Kinko's includes a notice in all course packets they print titled "Education and Fair Use: The Federal Copyright Law," and their managerial employees are familiar with the doctrine. For Kinko's employees, the guidelines for what determines "fair use" boil down to: the nature of the work, its use (whether commercial or non-profit), its current market value and whether this is affected by photocopying, and the amount of the work in question, calculated as a percentage of the total work. In practical application, all of these factors can work together to produce a nebulous reference for what is acceptable or unacceptable. For example, one cannot necessarily count on a "standard" percentage of a work to be permissible. As far as Kinko's is concerned, short excerpts are always fine, but for larger portions of material, an old or out-of-print book is more acceptable than one readily available. Since the total amount is what is important, spreading chapters throughout a packet does not change the total amount of text copied from one source.

There are general guidelines for what is copied, but the responsibility lies mainly with the users--in this case, the professors. Kinko's believes that most professors do care, but aren't informed about what is permissible. How, then, does a professor "get informed"?

The problem with the Fair Use law for users and copyshop managers alike is that it is vague. Only a judge can ultimately decide what constitutes "fair use." The decision in the Kinko's case could clarify that gray area of copyright law which permits "fair" educational photocopying but does not clearly define what that means. In a 1983 case against New York University, nine of its professors and the Unique Copy Center, a settlement was reached between the publishers, the university, and the photocopier requiring stricter guidelines and closer monitoring of the permission-granting process. A stricter interpretation of the law was satisfactory for this instance, but it apparently did not solve the problem.

Kurt Koenig, vice-president and general counsel for Kinko's Graphics, told Publishers Weekly (12 May 1989) that it will be impossible to control copyright infringement under the present law until all parties--publishers, university professors, and photocopiers--came together to address the issue. Said Koenig, "The lawsuit will not stop the problem. The real impact is at the university and we think schools will ultimately be drawn into this suit as well. We do this work at the request of professors."

Kinko's had hoped to settle the case out of court. The company spends a good deal of money to train store managers in the copyright law, and they provide "campus representatives" who work directly with professors to help them with current practices. According to Keonig, the company's stores routinely get necessary permission from publishers to make photocopies. Big publishing companies are slow to process the requests, and while some are more friendly than others, most are not equipped to answer questions from the "public." Since Kinko's employees could not ask for permission to use copyrighted material directly, the company employed a copyright lawyer and began a pilot program to centralize permissions requests. The central office is used by some 60 of the 200 stores that do Professor Publishing, and according to Koenig, Kinko's processes about 10,000 requests a month. Most often the chain deals directly with the publisher, mailing or faxing letters, or telephoning. Nevertheless, the publishers must give permission on a case-by-case basis and are still not equipped to deal with the number of requests professors generate. One publisher can take a period of about 82 days to process a request which can mean that permission to copy is granted only after a course is over.

Koenig has tried to urge publishers to work with Kinko's and companies like it by granting copying contracts. He has found support for this idea within the Harvard Business School's publishing division, which has made money through a reproduction contract with Kinko's by which the chain may copy case studies for a set fee. Kinko's also has an agreement wit the American Psychological Association, which receives 25 cents for every APA article included in a course packet. Both the Harvard Business School and the American Psychological Association encourage this type of publishing because it is lucrative for them and affords easy access to material for scholarly research.

The bottom line: students, faculty, publishers, copyshops, authors

For students, "course packets" can cut costs, by substituting for expensive textbooks which may not be used in their entirety during a course. On the other hand, customized texts can't always be resold to other students. Collections from journals can be superior to textbooks in specialized courses, because they are more topical and current. Professors themselves encourage the new technology because it allows them to keep up with fast-changing fields, and lets them put their own distinctive stamps on reading lists.

Customized texts have pros and cons for authors as well. Customizing means a wider audience and a way to keep books current. However, there is always a problem with giving free rein to reproduction of a cohesive "work of art," because only 70% of something might slant the information and not give the picture the author intended.

Whatever the moral or ethical implications, the driving force behind the case is the competition for student dollars. Attorneys for the publishers argue that the publishers have respect for copyright laws, paying royalties to the authors that create the books, while Kinko's does not. Kinko's says they are merely following past practice and accuse publishers of trying to monopolize the academic market and milk students for outrageous sums. In Kinko's opinion, the educational process would suffer if students were forced to yield to publishers' high prices. Ironically, one of the books involved in the suit is Understanding Capitalism: Competition, Command, and Change in the U.S. Economy by Samuel Bowles and Richard L. Edwards.

Book companies have started to adapt themselves to the changing marketplace. In the summer of 1990, McGraw-Hill, Inc., one of the nation's biggest publishers, initiated a project that lets professors order tailor-made versions of college textbooks. The publisher loads a book and supplementary articles onto a computer and prints out the material that the teacher wants. This process could circumvent bookstores altogether by allowing professors to dial up the database from their personal computers. Part of McGraw-Hill's long-term strategy for competing in the changing marketplace is customizing all published material. The first text to be tried in McGraw-Hill's plan is an accounting book which sells for $43.95. The customized version of the text, which would contain only the chapters the professor actually plans to use, might cost about two-thirds of that. McGraw-Hill would set a base price and pay royalties determined by the selections a professor orders.

So, what is a professor to do? The Ad Hoc Educators' Committee on copyright law is concerned that the case will prove to be as divisive as the lawsuit brought against NYU in 1983, in which the Educational community became divided over issues not clear then--and not clear now. Kinko's is maintaining that they will fight to protect faculty members' "rights" to use copyright materials for teaching. In Ideas in the Workplace, H. Clarke Anawalt writes that "a departure from fair use is often detected where the user (copier) derives a substantial monetary or economic benefit from the material copied." Can professors be accused of this? Certainly professors are concerned about the rising costs of textbooks for their students. Professors spend a good deal of time as students, and are sympathetic to students' worries. Students are also the necessary ingredient for the academic community to survive. Many professors also publish, and know the importance of market and royalties. Is there a bit of a vested interest on behalf of the academic community to move toward customized texts?

What about implications for the Montana Academic Community? Although we might not be under the close scrutiny for which businesses and institutions of more populated states are a target, the Montana academic community will have to adopt procedures that follow the procedures that copyshops such as Kinko's say are applicable under the law.

There is no use in trying to stop the increase of technology. The Wall Street Journal (16 August 1990) foresees a day when students and professors will call up texts, software, and data from workstations on campus. When this happens, how will publishers collect royalties? How will collection be enforced? This case against Kinko's may be only a hint of battles yet to come.

[The Montana Professor 1.1, Winter 1991 <http://mtprof.msun.edu>]

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