I
recently became aware of an interesting discussion on the Renewing Worship blog
(blog.ncbaptist.org/renewingworship/), 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 LifeWayWorship.com. 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.**