Photocopier Seized from a University of Toronto Copy Shop
Course packets are commonly used in place of pricey textbooks by NYU professors looking to give their students’ wallets a small break. However, this practice may change in future semesters due to two recent wins for copyright holders who sued copy shops located on or near university campuses.
The Federal Court of Canada ordered the confiscation of photocopy machines, undoubtedly quite expensive, and course packs for over 75 courses from a shop located near the University of Toronto. The court mandate came after Access Copyright, a Canadian copyright licensing agency founded by creators and publishers, had repeatedly tried to stop the shop from making copies for professors and students at the university.
Also last week, and more troubling for American students, the Eastern District Court of Michigan found a copy shop in Eastern Michigan directly liable (not secondarily, as precedent leads us to expect) for allowing professors to drop off and students to use their machines to copy packets of readings. On his blog “Exclusive Rights,” attorney Shourin Sen, hypothesizes that the Court found the shop primarily liable to avoid holding the students responsible; in order to find secondary liability, the Court must also have find another party primarily liable. In the opinion, the Court notes that the shop, Excel, owned all the supplies and elements used for reproduction, while the students merely pressed “Start” on the copy machine.
The decision provides a troubling extension of primary liability. Is the venue for infringement made available by a copy shop any different from the venue of an Internet service provider? Similar application to the web would certainly be a stretch, as service providers do not have the same level of control over the infringement process as does a copy shop, who literally holds on to the master and retains profit from its copy; however, more direct parallels to other practices in academia are possible and could impact the way in which scholars conduct library research. If an entity can be held directly responsible for another’s use of its copy machine, libraries are no longer protected, as they also distribute the materials which students copy. Great harm would be done to intellectual progress at America’s higher education institutions if copy machines were removed from all university libraries, particularly since select rare or older books are not allowed to be checked out, or if a librarian or other official needed to approve copying in advance. As Lessig points out in Robert Boyntown’s “The Tyranny of Copyright,” this “‘Oliver-Twist-like position’” of asking “‘Please, sir, may I?” whenever using something under copyright revokes the American tradition of free engagement with information and advancement of the nation’s intellectual progress.
Michael Carroll, in “Fixing Fair Use,” maintains that educators and students, because they use so many resources that fall under copyright, have a strong interest in clarification of the protection provided for copying for educational use, i.e the nature purpose of use provision of fair use. But this is not the type of clarification universities hoped for. This week’s decisions serve as a strong example of the discord between the harm to the market factor of fair use and even admirable uses of a copyrighted work. It will be interesting to watch for other cases regarding course packets and university copying in the near future, and for the time being, hope that there is no chilling effect on scholarship that results these decisions.
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