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THE PROPRIETOR'S VIEW OF FAIR USE

Christopher A. Meyer, Associate, Proskauer Rose Goetz & Mendelsohn, currently Copyright Counsel for the Association of American Publishers (AAP) and formerly Senior Attorney in the United States Copyright Office, focused on the proprietor's view of fair use, looking at those stakeholders concerned with information ownership and copyright protections. After commenting that the ability to alter computerized documents is troublesome in a paper-free environment, especially if the changes made might be of an undetected but mendacious nature, Mr. Meyer asserted that fair use does not require much modification at all. Copyright appears to be a mirror of the history of communications technology and, as such, adapts to fit technological innovation. Mr. Meyers felt we would be naive to believe that we are at a pivotal point in history. Rather, he felt, we are on a continuum where change is slow and constant. Copyright is not dead and there is no broad agreement that even, at a minimum, fair use needs to be redefined.

Fair use has been in effect well over 200 years in Anglo-American copyright law. Mr. Meyer stressed that analysis of copyright concerns is always fact intensive. Whether or not a use is fair depends on the facts of the case, so courts tend to concentrate on instances of use, not on articulating broad rules of applicability.

The United States Supreme Court has ultimate authority over copyright in the United States, but has only spoken on it three times. In Harper and Row, Publishers, Inc. v. Nation Enterprises the court decided that The Nation magazine could not publish an extract of President Ford's memoirs in advance of the Time's publication of the same work. In Stewart v. Abend the court ruled that a motion picture in the public domain based on a short story that was not in the public domain could not be freely marketed without permission of the short story copyright holder. Mr. Meyer stressed the complexity of the system at this point, especially as it pertains to derivative works. Finally, in SONY Corp. of America v. Universal City Studios, Inc., home video time-delay taping by individuals, not businesses, was decided to be fair use by the court. In another video-taping case at the state level, Mr. Meyer noted that the New York State courts ruled that the BOCES (Board of Cooperative Education Services) could not produce a circulating library of taped, educational broadcasts and be within the scope of fair use. These cases demonstrate the court's concern with the market value of copyrighted material.

In 1790 the first copyright laws in the United States covered only published books, charts, and maps. As other technologies came into being, the law added provisions. Engravings, photographs, dramatic works, music, movies, radio and television broadcast, cable television, cablecast, computer software, and computer databases have all had their effect on the law as it now stands. Rights have been expanded to include the rights to translate, truncate, adapt, annotate, make a derivative work, publicly perform, and make a display of the work.

Addressing the issue of rights and permissions, Mr. Meyer mentioned the spectacular success of music copyright owners in being compensated for playing of selections on the radio and in other media. He stated that a mechanism has been developed without creating transaction costs that impede the cost of doing business. Similarly, the Copyright Clearance Center (CCC) collects revenues for photocopying of journal articles both in the United States and abroad.

Mr. Meyer concluded that existing copyright guidelines will serve us well in the future when applied to networks, electronic journals, or undiscovered applications. The law as it stands provides for the dissemination of successful works and for the recouping of investments by spreading cost over a large group of users based upon the popularity, utility or necessity of the works. Payment needs to be proportional to the use of the work, and future and current electronic systems, like the music licensing societies, need to have transactional systems that keep track of the use, downloading and printing of material so that royalties can be assessed for only small transactional costs.