Users' Rights in Copyright: An Interview with Ray Patterson

For over 30 years, L. Ray Patterson has been writing and teaching about copyright. His thoughtful and thorough analysis of the primary purpose of copyright in The Nature of Copyright: A Law of Users’ Rights is a must-read for socially responsible librarians. Ray Patterson is Pope Brock Professor of Law at the University of Georgia and Special Assistant Attorney General of Georgia for Copyright Matters.

I had an opportunity to interview Professor Patterson in June. His comments about copyright guidelines, the publishing community and fair use are thought provoking and send a clear message to libraries. Promote Fair Use.

--Carrie Russell, Copyright Specialist, OITP


Carrie Russell:
Throughout your long career as a law scholar and historian, you have taken the position that the purpose of copyright is not to reward authors but to promote society through the advancement of knowledge. How do you argue that the promotion of learning is the purpose of copyright law?

Ray Patterson:
The basis for my position that copyright is primarily to benefit the public interest is the copyright clause and decisions of the U.S. Supreme Court. The copyright clause gives Congress the power to "promote the progress of Science," and empowers Congress to grant copyright only for original writings only for a limited time. The Supreme Court has said repeatedly that the copyright monopoly is primarily to benefit the public interest.

Russell:
In The Nature of Copyright, you point out that law grows out of a combination of legislation, court decisions, and custom, and that "consistent private action can essentially 'make' law" by suggesting customs that courts may honor. How might libraries behave to uphold and to establish customs protecting users' rights in copyright?

Patterson:
Librarians should be as aggressive in protecting the right of fair use as the publishers are in seeking to destroy it. Librarians, for example, should reject the efforts of publishers to limit fair use with guidelines, which are used to expand the copyright monopoly. Thus, if to copy "1,000" words is a fair use, to copy "1,050" words is an infringement, which entitles the copyright holder to a license fee. Once the custom of guidelines is established, courts will almost surely follow them. We have here an example of custom creating law. After all, if librarians go along with the guidelines, why should not the courts do so?

In view of the wording of the fair use section of the copyright statute, it is reasonable to say that fair use is a right, not merely a privilege. The basic point is that there is a difference between the copyright and the work. To use the work is not a matter of fair use, but personal use. An example is making a copy of an article for one's file or for a student to study without having to check the book out of the library. The reason for the concept of personal use is that fair use relates to the use of a work by another author for profit, not by an individual for personal use. Note that the four factors in section 107 are directed to commercial use, not personal use.

Russell:
You have shown how the history of copyright has been influenced by the introduction of new information technologies--technologies ranging from the printing press to broadcast video and computer technologies. The last several years have seen tremendous growth in new digital information technologies. For some commentators, the advent of a new generation of information technologies marks a dramatic shift that will mean the end of copyright. For others, it indicates a need to strengthen publishers' private property interests in copyright. What are the key issues regarding copyright in the current environment, and how do you see them affecting our understanding of copyright?

Patterson:
As I see it, the key issue in applying copyright to new technology is how to protect the constitutional policies of copyright mandated by the copyright clause. Those policies are the promotion of learning, because the clause so states; the protection of the public domain, because copyright is only for original works and only for a limited time, provisions that mean that copyright cannot be used to capture material in the public domain, and that all copyrighted material will go into the public domain; and public access, because the "exclusive Right" that Congress can grant to authors is the exclusive right of publication, that is the right to market the work.

If copyright for new information technology cannot be shaped to protect these policies, it will be necessary to forego the copyright monopoly for the new technology and let the market solve the problem.

Russell:
You've written about the problem of people with a financial interest in information making erroneous statements about copyright that appear to have the force of law. This problem has significant practical application for librarians. In many areas, libraries and universities have been visited or contacted by representatives of the Copyright Clearance Center for stated purposes ranging from "educating" people about copyright to verifying that an institution is "copyright compliant". Librarians have a social responsibility to protect access to information, but given the difficulties of understanding copyright law and the fear of potential litigation, visits of this sort can be quite intimidating. What can libraries do to ensure they don't fall prey to overt pressure and subjective "advice" from publishers and their representatives?

Patterson:
The most important thing that librarians can do is to educate themselves about copyright. The Copyright Clearance Center, I contend, is engaged in intellectual fraud, another example of using custom to create law. There are several things that librarians can do:

  • Realize that Congress provided special provisions that enable librarians of non profit institutions to do their job and gave them weapons to combat the publishers' grab for copyright power. See, e.g., § 108(f)(4); §504(c)(2).
  • Realize that the risk of infringement actions against employees of state libraries (including libraries of state schools) is small because of the Eleventh Amendment rulings of the Supreme Court that a citizen cannot sue a state in federal court. Note also, that copyright jurisdiction is exclusive of state courts.
  • Realize that actions against private colleges and universities is unlikely because the publishers do not want to take the risk of an adverse decision.
  • The point here is not that such institutions have a license to infringe, but that they have a protection against the publishers' efforts to create a license to steal from library patrons.

Russell:
Many of our readers are interested in developing copyright policies at their institutions. You were involved in drafting the University of Georgia's copyright policy. Can you walk us through the process of how that policy was developed? How did that process work? Are you satisfied with the result?

Patterson:
The University of Georgia policy is in fact a policy of the University System of Georgia, called the Regents' Guide to Copyright and Educational Fair Use .

The key to this effort is understanding copyright. Proponents of a sound copyright policy must first understand copyright themselves; they then must educate the appropriate officials.

The most common error about copyright is the idea that copyright is property to be protected as other type property. Copyright, however, is "intellectual property," which means that it is not like other property. It is a series of defined rights to which a given work is subject for a limited period of time for the purpose of marketing the work. In short, copyright is a statutory monopoly to serve a public purpose, not a plenary property right.

The error as to the proprietary nature of copyright is a result of the copyright culture created by publishers. Their claim is that if their "property" is not protected, there will be fewer books, paintings, motion pictures, and so forth. This is what I call "the strangled in the womb" argument, based on a petition to Parliament in England in the 1640's to enact a new licensing act to protect the booksellers. (In England, the Licensing Act served also as a copyright statute.) If Parliament did not enact new censorship legislation, the petition argued, "many books of great worth will be strangled in the womb."

Apart from the fallacy on which the argument is based-the copyright statute is a muse for authors and artists-the argument is a classic example of the wish being father to the thought, as the Sony case, decided by the U.S. Supreme Court in 1984, proves. Motion picture producers argued that if individuals could videotape copyrighted motion pictures off-the-air for their own personal use, the industry would be ruined. The Court disagreed, and today, some sixteen years after the dire predictions, a very large portion of the movie industry's income is from the sale and rental of videocassettes of motion pictures.

Russell:
What sets the University of Georgia policy apart from others I have seen is its strong position that fair use is a user's right. Why is it important for an institutional policy to take this position?

Patterson:
University librarians are the last line of defense against the efforts of publishers to sacrifice the right of the people to know on the altar of profit. This statement is not as hyperbolic as it may seem. The conduct of the publishers indicates that their goal is to do away with free lending libraries, to transform copyright into a pay-per-use right, that is to make copyright the basis for a use tax as well as a sales tax. To succeed they must co-opt librarians to be their licensing agents. Unless librarians refuse to be co-opted, the publishers will succeed.

Russell:
The copyright policy was approved by legal counsel at Georgia. Typically, university legal counsel seem pretty risk averse. How did you convince them of the merit of this strong, potentially risky position?

Patterson:
I convinced them that fair use by librarians, teachers and students is a right, and not, as publishers like to say, an excused infringement. The real problem is the lack of sophistication about copyright law on the part of university counsel. The chances that publishers will sue a university or a library are two: slim and none. The law is against them.

It is helpful to understand the basis for the publishers' claim that "any copying by any means" is infringement. (Note the copyright notices to this effect.)

The 1976 Act divided the act of publication into two rights, the right to copy (§ 106(1)) and the right to distribute copies (§ 106(3)). All copyright prior statutes gave the copyright holder of books only the right to "publish" them. By dividing the publication right into two steps. Congress ostensibly made any copying without permission an infringement.

The problem with this interpretation is that it is almost surely unconstitutional. It gives the copyright holder control of the use of a book that it has sold-the use tax-which is contrary to the learning purpose of copyright, and arguably it makes copyright a law regulating the press in violation of the First Amendment.

Russell:
The Association of American Publishers says that the University of Georgia copyright policy encourages faculty and students to be copyright infringers. How would you respond to that statement?

Patterson:
This is the typical political spin that the publishers put on statements contrary to their interest. I am willing to debate the issue with any representative of the AAP at any time at any place.

Russell:
Has the University of Georgia been sued for copyright infringement (or otherwise harassed) since the copyright policy was instituted in 1997? Why not? Why haven't we seen any libraries being sued?

Patterson:
The University has not been sued for copyright infringement, and, as I noted above, presumably is not subject to suit in federal court because of the Supreme Court's Eleventh Amendment rulings.

My guess is that libraries of private universities have not been sued because the publishers fear they would lose the case because the law is against them. Note that the publishers bring lawsuits against for profit entities, e.g. Kinko's and Michigan Document Services.

Russell:
What advice do you have for librarians who would like to encourage their institutions to develop copyright policies that support the rights of users?

Patterson:
Educate the appropriate officials. This will be inordinately difficult to do because of what I call the copyright culture created by publishers. That culture is that copyright is their property and anyone who uses their property should pay them. The fact is that copyright is a limited statutory monopoly granted for a public purpose and that purpose is not to make a commodity of information and facts so that learning will be subject to licensing by publishers as in Elizabethan and Jacobean England.

Russell:
Many of the librarians I talk to want clear, specific answers to their copyright questions. Basically, they ask "is it legal if we do such and such or not?" In response, libraries rely on the guidelines established by publishing companies and organizations like the Consortium of College and University Media Centers (CCUMC) to help them interpret the application of fair use to address copyright questions. Do you think "fair use guidelines" are the answer?

Patterson:
As I implied above, copyright guidelines are the Trojan Horse of the publishers. Thus they definitely are not the answer. The Regents' Guide to Copyright and Education Fair Use is probably the best document available for this purpose. But ultimately, fair use is a matter of judgment, and librarians should not be afraid to use their judgment rather than the self-serving judgment of publishers. The reasonable presumption is that if the copying is not for commercial purposes, it is not infringing.

Russell:
The Digital Millennium Copyright Act is a major revision of the copyright law. What do you see as the most significant elements of this law, and what effect to do you envision it having on the future of copyright?

Patterson:
The most significant point about the DMCA is that it gives the copyright holder absolute control of access to material in digital form, much of which may not be entitled to copyright, and makes efforts to gain access a criminal offense. I have not studied the act in detail, but it is clearly contrary to the three constitutional policies of copyright: the promotion of learning, the protection of the public domain, and the right of public access. My guess is that under any rational interpretation of the First amendment and the copyright clause, it is unconstitutional under both.