Rhoda, thank you for the note about Canadian copyright.   I think the legal
situation in many countries has been gradually converging since the Berne
Convention, though of course enforcement and local interpretation still vary
a lot from country to country.


Cindy, the important part of the statute you quoted that we too often miss
when we talk about "educational purposes" is the part about how much you are
quoting:

<< 3) the amount and substantiality of the portion used in relation to the
 copy-righted work as a whole; >>

All -- as in, the whole article -- is too much of "the amount and
substantiality of the portion."

In works of prose, some courts have held that a "fair use" amount is around
250 words -- out of a total book; certainly if you are quoting from something
smaller than a book, like an article or essay, the fair use quantity could be
much smaller.    (In fact for poems or song lyrics the fair use quantity has
sometimes been held to be a single line, and two lines together is really
clearly NOT fair use any more.)

This quantity and proportion standard has to do, again, with the fact that
even if you aren't making a profit the author (or copyright holder) is losing
one.    If you are just referring to a few words, any reader who really cares
about the substance of the work is still going to have to go out and get it
in its entirety.   But if you are quoting -- or photocopying -- enough of the
work that the recipient has no incentive to go out and buy the original, then
it is NOT fair use, no matter how noble your purpose.



Kathy D. wrote that <<a book author typically signs away all copyright laws
to the publisher, so the author's wishes, or desired to give or not give
permission, are irrelevant>>

Quite right -- I should have written "copyright holder" there for "author."
Btw, most publishers will consent to amend that clause of the contract to say
"with the author's permission, not unreasonably to be withheld," language
that any book agent would insert as a matter of routine.  But the publishers
will certainly never suggest it to you, so those of us who are authors might
consider nonchalantly putting this one in the margin before signing our next
contract.   At least Kathleen Huggins might have heard about that extract
before it was in print, and so might any of us, next time we are in the same
boat.



Kathy also wrote,

<<Professional journal publishers know that professors are not going to make
students buy a single edition of the journal in order to read one copy.  In
many cases, single editions of a journal are not available for purchase, or
are only available for one year after publication.  Likewise, publishers of
books know that a professor is not going to make the students buy an entire
book in order to read one chapter.  And if they are going to charge $5
copyright fees for one chapter, that the professor will simply drop their
selection from the course packet. So, as far as I am aware, they have
relented.>>

It is certainly true that many journal publishers see the reasonableness of
automatically granting permission to copy their copyrighted work if it is
otherwise unavailable, or sometimes even if its just expensive, and they will
frequently give that permission without fee.   Ask and you shall receive
permission, generally.  All the more reason not to steal what the owner would
be so likely graciously to grant.  And if, as would be common, they do ask
for a $5 per essay over the whole class's photocopy, so that you are talking
about, say in a small class of 10, fifty cents per selection per student,
would that make you drop it if you thought your students really ought to be
reading it?   I personally as an undergraduate would gladly have paid an
extra $10 per packet-of-20-articles, to read the right articles instead of
the 2nd best ones, if that's what it cost to respond fairly to the owners of
that material (and btw at that stage of my life the additional $10 was not at
all easy to come by either).

The argument that persons would might well be willing to grant me their
property, so I don't need to ask their permission before seizing it, is not
one that I personally would be comfortable justifying to myself or, say, to
my children, or, say, to a court of law.

Elisheva

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