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A Fair Use Case-Study: Multiple Copies for Classroom Use 495
E.
The four factors specifically set forth in section 107 for consideration are not an
exclusive list of the factors relevant to a fair use determination. We confront here an additional
consideration. More than one hundred authors declared on record that they write for
professional and personal reasons such as making a contribution to the discipline, providing
an opportunity for colleagues to evaluate and critique the authors’ ideas and theories,
enhancing the authors’ professional reputations, and improving career opportunities. These
declarants stated that their primary purpose in writing is not for monetary compensation
and that they advocate wide dissemination of excerpts from their works via coursepacks
without imposition of permission fees. The fact that incentives for producing higher
education materials may not revolve around monetary compensation is highly relevant.
Copyright law seeks to encourage the use of works to the greatest extent possible without
creating undue disincentives to the creation of new works. The inclusion of excerpts in
coursepacks without the payment of permission fees does not deprive authors and inventors
of the rewards that the record indicates authors value, such as recognition. Finding that the
excerpts at issue here were used fairly would deprive the authors of their share of
permission fees assessed for the copies. However, the record indicates that monetary
compensation is a secondary consideration for authors in this field, and the permission fees,
while significant in the aggregate to publishing companies, are likely to amount to a mere
pittance for individual authors. MDS’s use of the copyrighted works appears to provide the
authors with incentive to create new works, thereby advancing the progress of science and
the arts, rather than to discourage them from doing so.
Thus, an additional factor, incentives to create in this specialized field, weighs in
favor of a finding of fair use.
VI.
Because the statutory factors, plus author incentives, dictate a finding of fair use,
we conclude that MDS did not infringe upon the copyrights of the publishers in this case.
We REVERSE the district court and order summary judgment for the defendants on the
basis of fair use.
DAVID A. NELSON, Circuit Judge, concurring in part and dissenting in part. [Omitted.]
Questions:
1.) “Evidence of lost permission fees does not bear on market effect. The right to permission
fees is precisely what is at issue here. It is circular to argue that a use is unfair,
and a fee therefore required, on the basis that the publisher is otherwise deprived of a
fee.” Explain.
2.) How could one ever escape from such circular reasoning? In other words, how could
one ever talk of market harm if one cannot assume that one has a right to the contested
market?
3.) Whose incentives are the relevant ones here, according to Judge Ryan? What would
the publishers say? What arguments can each of them draw from the Intellectual Property
Clause of the constitution?