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Monday, June 25, 2012

Clarifying Fair Use and Convenience Copies in the Church

**Read Disclaimer at Bottom of Article**

I recently became aware of an interesting discussion on the Renewing Worship blog (, and thought I would jump into the conversation. Although I would love to provide a direct link to the thread, I believe it was removed to avoid further confusion in the church. For that reason, I will first provide you with some background.

Kenny Lamm is a dedicated blogger and senior consultant for worship and music for the Baptist State Convention of North Carolina. A few weeks ago, he posted a response to what seemed to be an innocent question: “Are Convenience Copies Legal?” His response, which first raised various scenarios when copying would be “convenient,” went on to site Patrick Watts, Internet Development Strategist at Patrick states that:

Because copyright is based in law, the complete answer to the question is that each situation is slightly different, and there’s no one answer. And, because copyright law doesn’t define “convenience copies” or “in shipping copies” or “enlargement copies” or “page turn copies,” all of these uses are copying activity that, by the letter of the law, are activities that require us to ask, “does it require a license?

I can’t say I disagree with Mr. Watts so far (although I certainly wouldn’t have said it this way), but let’s continue.

Mr. Watts goes on to state that, “Fair Use attempts to give a framework for times when copyrighted material gets duplicated, but doesn’t necessarily need to be re-licensed for the activity.” He then cites Section 107 of the US Copyright Act and goes on to say that the statute, “doesn’t really tell us anything…except for #4.”

Pardon me?

A statute with at least four parts only has one relevant part? Mr. Watts’ opinion is, unfortunately, inconsistent with the law and policy of statutes drafting and interpretation. The statute is filled with relevance. More importantly, his opinion conflicts with court interpretations of the statute in likely every circumstance where the statute has been analyzed.

Not surprisingly, the balance of Mr. Watt’s analysis is erroneous and misdirected, both from a legal and logical perspective, which is why attorney Paul Schaffer, a self-proclaimed “intellectual property specialist” steps in to debunk the post.

After establishing himself as an authority on the topics of Fair Use and intellectual property, Mr. Schaffer goes on to analyze the Fair Use doctrine. And, although I agree in part, and disagree in part, with the presentation of his analysis, I think the more pressing issue is this: in the process of not answering the original question, all participants in the conversation have further convoluted the subject matter of Fair Use, including its application and interpretation.

Recently, I wrote an article explaining the Fair Use doctrine, including its application and interpretation. I’m reposting it here for your convenience. I believe this will bring clarification to an already difficult subject matter.

Now, let’s revisit the original question: Are Convenience Copies Legal? From a straightforward statutory analysis, the answer should be an obvious “no!” Why? Because “convenience” is not an intended purpose of the Fair Use doctrine. Sure, one could argue that making copies for ‘convenience’ to, for example, teach on the subject matter of the copy should fit nicely into the Fair Use paradigm, but there are two problems with that position. First, making a copy easier to read is not for purposes of teaching, or commenting, or news reporting, or any of the other concepts presented in the statute. Second, and this is where I certainly agree with Mr. Schaffer, if there’s a market for the types of copies you’re trying to make out of convenience (i.e., large print, etc.), the courts would be less inclined to determine that your use is, in fact, fair.

So, while the net result may be an encouragement to ask for permission, keep in mind that the idea of making a convenience copy is not completely misguided.  Back in 1984, the United States Supreme Court handed down an opinion concerning the copying of television programs on Betamax tapes [Wikipedia: Sony Betamax Case]. There, the Court determined that the particular conduct in question was for time-shifting purposes and fit within the paradigm of Fair Use. Applying the same logic and analysis, one could take a position that copying sheet music you already own with the sole intention of making the print larger is tantamount to time-shifting a television program you’re already entitled to watch. It should constitute Fair Use. It just might. Or it might not.

There’s one way to find out.

I hope this helps you in your decision making process.

~ Brock Shinen, Esq.

 **This article is for informational purposes only and does not constitute legal advice.**

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