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WILL WE NEED FAIR USE IN THE TWENTY-FIRST CENTURY?

1. INTRODUCTION.

Over the last two years I have observed numerous developments, listened to many conversations and queries, and reviewed countless licenses that, individually, usually evoked the same response from me: "But that's fair use!" or "What about fair use?" or some variation on that response. Collectively, however, these events and developments caused me to begin to question my assumptions about the role of and need for fair use in the electronic environment.1

For example, two summers ago when I first read the Texaco2 case, which I will discuss in more detail later, I was very critical of the holding because it seemed to use circular reasoning and was results-oriented. The court found that if there were reasonable mechanisms in place for Texaco to pay for copies, then it should not have fair use available as a defense to an infringement claim. The Second Circuit's opinion affirms the lower court's holding.3 Both opinions sharply threaten the non-profit research community's use of fair use even though the Second Circuit tried to limit its holding to the specific facts of the case before it. The court severely restricted its definition of research purposes, a definition which other courts may well adopt, and it created a tremendous incentive for publishers to establish a fully functional market for reprints.

I was similarly alarmed as I read database license agreements that contained no acknowledgement of the fair use rights of users but appeared to assume that all uses are "chargeable events."

The Green Paper,4 which I will also discuss in more detail later, implicitly and explicitly assumes that fair use will not be necessary in the electronic environment. Much of the Green Paper's controversial stance makes sense if in fact the Working Group is correct about this assumption; otherwise, the proposals may sharply increase the cost of access to copyright material without necessarily increasing the production of knowledge.

It was the accumulation of events seeming to indicate an improvement in the market's ability to respond to the needs of users and a suggestion I had begun to hear from publishers, that fair use might be the cause of some market inefficiencies such as high journal prices, instead of the other way around, that caused me to begin to wonder: Could fair use be both the effect of market failure and the cause of it? Could the difference between the print and electronic environments be sufficient to justify these new assumptions and the events predicated upon them and at the same time offer a glimpse of a way out the fair use maze? Will we need fair use in the 21st Century?

As you may guess, the answer to that question is not a simple yes or no. What I found was this:

Fair use covers basically different activities; some are greatly affected by electronic creation, communication and distribution; some are hardly affected at all.
Fair use frees users from different obligations, some of which are dramatically affected by electronic creation, communication, and distribution; some are only indirectly affected, if at all.
The pace of change in the electronic world makes any prediction of the future somewhat foolish.

Still, I concluded that electronic creation, communication, and distribution, which I will refer to for convenience as the electronic environment, makes a sufficient difference to justify efforts to differentiate the components of fair use. Under some circumstances we are likely to need fair use despite the medium; under other circumstances the medium may substantially undercut the need for fair use, making it possible to begin to shift the focus away from the fair use debate and towards a more cooperative exploration of the many ways that creators, publisher's and users of information may mutually exploit and benefit from the electronic environment.5

So, this paper is first, an exploration of the meaning of fair use so that we may focus attention on those parts of its function that are most affected by the electronic environment; second, an examination of that effect; and third, an evaluation of the supposed benefits of fair use and alternative ways to achieve those benefits given the impact of the electronic environment on fair use.

2. HISTORY AND EVOLUTION OF FAIR USE, PARTICULARLY THE EFFECT OF TECHNOLOGY DEVELOPMENT ON THE BALANCE BETWEEN THE RIGHTS OF USERS AND OWNERS OF COPYRIGHT MATERIAL.

Fair use has come to be widely understood as a balancing point between the rights of authors to exclusive control over their works and the rights of users to have free access to the ideas contained in those works. We began trying to strike this balance in the mid-eighteen hundreds as it became evident that some limitations would have to be placed upon the "exclusive" rights of the copyright owner, in order for the law to truly further the purpose for which it was established.6 It became clear that some exercises of an author's exclusive rights could stifle creativity by withholding from the public the raw materials of new creations. In effect, we began to identify activities that furthered the goals of copyright even though they may have treaded upon the copyright owner's exclusive domain.

At its inception, copyright only concerned itself with the protection of printing, reprinting, publishing, and vending, and only for a short period of fourteen years. When copyright had such a narrow scope, there was little need of fair use.7 It was only as copyright expanded to cover substantially longer periods of time (currently, life of the author plus 50 years, with discussion of extending the term to life of the author plus 70 years); to embrace the exclusive rights to make and distribute copies; to display and perform works; to protect not only literature, but music, sculpture, architecture, photographs, and computer programs; and to include as infringement the taking of nonliteral elements (for example, structure, sequence and organization), that it became necessary to balance such expansion with correspondingly expanded exemptions from liability for infringement, including rights of fair use.8

In some ways, our Copyright Law today would be unrecognizable to those who first set it out 200 years ago. This is in large part the result of technological changes and the law's continual need to accommodate those changes. Balances between the rights of copyright holders and users of copyright material achieved under one set of circumstances only hold up for awhile and invariably need revision as the facts of our lives change. In this century, the photocopying machine and now the computer have drastically altered the balances achieved in earlier eras. It is quite remarkable that the law has accommodated as much growth and change as it has. This is, no doubt, a tribute to its flexibility and our system of interpreting the law in the light of change. Nevertheless, this course of events has brought us undeniably to the point where we are today, where I have yet to find among those who must use and understand the law of copyright and fair use, excluding in particular those lawyers, judges and academics who are paid to try to understand it, very many who are satisfied with the precarious balance we have today as we stand inelegantly poised to enter the 21st century and the electronic age.9

3. THE ACTUAL ROLE OF FAIR USE TODAY; HOW IT FUNCTIONS; WHAT IT DOES FOR THE RESEARCH COMMUNITY AND WHAT IT DOES NOT DO; WHAT IT REALLY COSTS.

a. Fair Use Comprises Many Different Activities

Fair use subsumes a number of very different kinds of activities and it consists of several different elements. Since the impact of the electronic environment varies over the range of these activities, I want to take a moment to explain these distinctions.

The statute includes an illustrative list of activities that may qualify for fair use, depending upon whether the activity "passes" the weighing and balancing test described in the statute.10 The activities listed include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. Other activities that are not included have been found to be a fair use, for example, home taping of television programs for personal use; and it must be understood that some comment, news reporting, etc. is not a fair use because it goes beyond the parameters defined by the factors enumerated in the statute's weighing and balancing test. Nevertheless, these listed activities can reasonably be considered "favored" in the eyes of the law.

Parody, criticism, news reporting and comment are examples of activities that a copyright owner might not be inclined to permit at any price, given complete control over his work.11 Our public policies, however, favor such activities. Thus, the courts carved out exemptions from the requirement to obtain permission and pay fees for the use of portions of an author's work for those purposes. These uses typically involve the second author's using short quotations from the protected work in the creation of a new work, although parody usually involves borrowing more from the protected work than other uses in this category. Many times the critical elements in deciding whether the use is fair are how much was taken and whether the new work competes with the original.

Teaching, scholarship and research have also been recognized as socially valuable activities that we can not unduly burden. Until recently, the high costs associated with the requirement to obtain permission and to negotiate a price for use of protected works would have discouraged these very valuable activities. So, again, the courts carved out an exception for these uses of copyrighted materials. This second category of uses usually involves photocopying articles from periodicals, chapters or other parts of books or charts, graphs, or illustrations and in most cases does not directly contemplate the same kinds of uses described above.12 The purpose of this copying is most often to make access to the ideas contained in the works more convenient. The critical elements in this analysis appear to be whether the use is for non-profit purposes and what impact the use will have on the market for the original.13

b. Ownership's Twin Restraints Upon Use

All uses of a protected work require, first, permission from the author, and second, the payment of whatever price the author might ask for permission. Thus, fair use frees the user from two constraints: the obligation to ask permission and the obligation to pay a fee for the use. The costs involved in determining who the owner is, making contact with him, negotiating the amount of the fee and arranging for payment are called "transaction costs" and are distinct from the actual amount of the fee. In many cases, the obligation to ask permission costs the user more than the actual fee.

Either of these obligations may act as a total bar to a desired use: users may be unable to locate the copyright owner at all; the owner may refuse permission; transaction costs may be too high to justify the effort; or the fee required may be more than the user wants to pay. Thus, arrangements that equate the elimination or substantial reduction of transaction costs with elimination of the need for fair use, as the Green Paper, Texaco, and Texaco II have done, may be taking only part of the function of fair use into account.

c. The Impact of the Electronic Medium

The impact of the electronic environment will vary over the range of these activities and obligations. It will affect iterative copying to a significant extent, but copying that involves the incorporation of parts of one work into another will most likely become easier and more common and accounting for such uses of others' works will require analyses similar to those undertaken herein.

Similarly, the electronic environment will have significantly more impact on copying for which permission itself is not an issue (iterative uses for research, scholarship and education where publishers seem quite willing to make works available). Where permission itself remains the primary obstacle, the effect of the electronic environment will be negligible.14

Thus, the electronic environment has its greatest immediate impact on transaction costs associated with the requirement to seek permission to copy books and periodicals for scholarly, academic and research purposes;15 as transaction costs become less of an obstacle, the primary obstacle to access and use will become the price charged by the copyright owner. It does not appear though that the electronic environment has any direct effect upon the price. This may be the biggest impediment to the user community's willingness to let go of fair use. So, the broad inquiry, "Will we need fair use in the 21st Century?" becomes more pointedly, "Will we need fair use to derive a fair price for access to information for scholarly, research and educational purposes?" Within that context, let us turn to an examination of the purpose or function of fair use, what it is supposed to do for us and what it really does.

d. The Source of the Fair Use Debate

The law of fair use is admittedly one of the most difficult to understand. The extent of fair use is unclear even in the print environment where the body of law is more than 150 years old. Defining fair use in the electronic environment will not be simple either. At the heart of the difficulty is the fact that fair use is not and has never been exact. What is fair changes with every set of facts. For example, if a user sets out all the facts about a proposed use of another's works (the character of the proposed use, the nature of the work and amount to be copied, the effect on the market for the original) undertakes the fair use analysis as best she can and arrives at a conclusion, her conclusion is only good for that particular set of facts. If one of the facts changes, the result of the analysis could be incorrect for the new circumstance. Further, the analysis itself is very subjective and open to considerable disagreement as to how each of the four factors should be weighed in each particular circumstance. Two lawyers each undertaking the same analysis of the exact same facts could come to completely opposing conclusions and support them with citations to the same or different cases! One's result is, therefore, not necessarily predictive of what a court would really do given the same set of facts. It is very hard to know for sure that a proposed use is or is not a fair use.

This difficulty stems at least in part from the fact that we have many different theories about the justification for fair use. For example, fair use has been "[t]raditionally conceived as based on authors' implied consent to reasonable uses of their works;"16 as integrally a part of the constitutional grant of rights and not subject to the ordinary rights of individuals to contract;17 as mandated by the market's failure to provide reasonable access, and to the extent markets can provide such access, as irrelevant.18 These different explanations for the existence of fair use lead to disparate conclusions about whether a particular use might be fair.19 Some describe fair use in much more general terms, as protecting critical access needs of the public to expression or insuring that "the reach of the exclusive rights provisions of copyright law do not defeat the ultimate purpose of copyright law which is to promote `science' (knowledge)."20 For these observers, fair use might have a role to play regardless of changes in specific economic circumstances, for example, changes in custom or tradition, reductions in transaction costs or even the advent of a compulsory license scheme.21

The market failure justification for fair use underlies the result in the Texaco and Texaco II decisions.22 Both Judge Leval (district court) and Chief Judge Newman (appellate court) agreed that to the extent the Copyright Clearance Center had made asking for permission and paying publishers easy, the scope of fair use had correspondingly diminished.23 Thus, those who believed that Texaco constituted a ringing endorsement of the Copyright Clearance Center and sounded the death knell for fair use in the research community beyond the walls of academia have the further support of the Second Circuit for their predictions.24 Unreasonably high transaction costs are certainly part of the basis for the existence of fair use under many theories; however, as noted above, the price for the copy may still be a distinct impediment to use. The Copyright Clearance Center may have done much to reduce transaction costs, but thus far it has not affected permission prices. Thus, even with the Copyright Clearance Center, there may still be a perceived need for a right of fair use because research and education may be impeded by high permission fees just as much as by high transaction costs.25

In summary then, there is considerable argument about the basis for fair use, its scope, and whether it can be effectively bargained away by contract. Against this background of debate over fair use in the print environment, we now take up the argument over how to value fair use in the electronic environment.26 Not whether, but how to take it into account and incorporate a value for it into the technical computerized systems we will be devising to make access easier, cheaper, faster, and more efficient. But if different lawyers cannot agree on what is and is not fair use, how easy will it be to come to agreement on a computer program's formula for fair use?27

e. The Economic Benefit of Fair Use

It seems obvious, given the response to the Green Paper, that this dialog will continue into the electronic future; nevertheless, we owe it to ourselves to examine some of the premises underlying our attachment to our positions in the print environment, especially since the balance we have supposedly achieved may in truth be more like a stalemate. The escalation in journal prices illustrates this point: users believe publishers charge a price that reflects what publishers think they are losing because users make fair use (and interlibrary loan) copies; users cancel subscriptions and make more copies because they cannot afford the journals and then publishers charge more because they perceive that fair use and interlibrary loan copies are further displacing subscriptions.28

This example suggests that fair use may not really be doing what everyone thinks it is, at least in the context of scholarly access to information. Perhaps our attempts to determine its extent, to figure it into the electronic equation, and, in effect, carry its ambiguity into the 21st Century will only perpetuate a system that frustrates all the parties at its very best. We think fair use means free use; we think fair use protects us from price escalations; we think it balances the rights of users and owners by providing us free access to the ideas contained in protected works. I would suggest that examining each of these assumptions will show that fair use falls far short of the claims made for it. In truth, access is getting more expensive; our libraries are spending more money on fewer titles.29 It seems quite likely that increasing reliance upon fair use and interlibrary loan is directly related to these statistics.

First, let us look at what fair use costs. Fair use does not mean free use. There is an enormous cost associated with fair use if one considers inflated prices for books and journal subscriptions and adds to that the actual costs of making a copy.30 Think through a typical copying activity, for example, obtaining a copy of a journal article from the library. If you include all the costs, the time away from other work (lost productivity), transportation costs, the money going into the copy machine, the paper, the people the library has to hire to tend to all the consumables associated with copying, and then imagine the millions of copies made every day, you may begin to appreciate the enormity of the resources that go into making "free" copies. Within the framework of what users are already paying for fair use, it should be possible to substitute other valuable services that could be provided by electronic publishers and authors willing to make their works available in a manner that more effectively meets users' needs. Electronic substitutes for these transactions do not have to be free to be considerably more attractive than fair use. This may be a very important point to remember as we look for ways to explore electronic alternatives: their costs may not have to be entirely in addition to what users are already spending; they may be, in many cases, in lieu of what users are already spending.31

Second, let us examine the assumption that fair use helps to contain costs because as library budgets continue to shrink and the price of information continues to escalate, there will remain an urgent need to contain costs in any manner possible. So long as fair use is believed to save money, users will not be willing to consider alternatives that do not take fair use into account.

Cost savings are presumed to flow from the exercise of fair use rights as counterpoint to the exclusive rights holder's dominion, a sort of shield against the effects of unreasonable escalations in the price of access to information. After all, if the early court cases determined that an exclusive rights scheme without fair use would invite abuse, fair use must be about curbing abuse.32 I began to question this assumption at least partly as a result of presentations made at last year's Symposium by Janet Fisher, Peter Givler, Colin Day, Michael Jensen and Isabella Hinds.33 These speakers suggested that price escalations may in fact be caused by users' reliance upon fair use rather than the other way around, but most importantly, they convinced me that regardless of which came first, the two are inextricably linked and both publishers and users may go down together if we cling to them.

At last year's Symposium I heard publishers say that they understood that price escalations do not achieve the purpose for which they are theoretically designed; that the benefit from the right to charge ever higher prices for books and periodicals is somewhat illusory since there is only so much money in the university community and the more that goes to high-priced journals, the less goes to books and the more a book costs, the fewer are purchased. It seems logical to suggest that fair use may not be achieving the purpose for which it is theoretically designed either.

I conclude that if both publishers and users may be mistaken regarding the extent to which their rights in this context are meaningful and provide them some power to control events, we should be willing to try alternative approaches. The most handy and flexible alternative is negotiating new deals in the new environment. This is not the only alternative, and I will address others later, but first I want to make note of an important aspect of alternatives generally.

4. ALTERNATIVE APPROACHES: THE IMPLICATIONS OF COPYRIGHT WITHOUT FAIR USE.

Any copyright system, including our own, is essentially a proxy for a deal that induces creation and makes ideas accessible to the public. Alternative systems can accomplish the goals of copyright too. Our first instinct, however, is to compare alternatives to our current system, rather than to evaluate them with reference to the underlying goals of copyright. When compared to our current system, most alternatives would appear to have shocking implications.

For example, when I first encountered them, I balked at license arrangements that seemed to contemplate that every use required a payment since this clearly did not take fair use into consideration.34 Actually, in this period of transition, I believe there are many examples of bad outcomes for users who "give up" fair use; I have frequent occasions to review such licenses and I note that others are experiencing similar shock and disbelief over some of the deals they are being offered.35 Thus, one of the implications of contracting without reference to fair use is that users may not get as good a deal as the deal they get under Copyright Law. But in order to compare two deals, users have to know the value of each. As I have suggested, I am not sure we really know what we have with fair use.

Blanket license proposals offer another example. Many proposals do not take into account that some works or parts of works may not be protected at all, or that some uses of a work are not an infringement.36 "Fair use," "ideas," "works in the public domain," and "facts," to name but a few, are descriptions of either unprotected material or uses that are by law not an infringement. The idea of eliminating any or all of these distinctions between what is protected and what is not is extremely controversial; it cuts at the heart of our system. In fact, agreeing to give up fair use in private contracts could effectively begin undermining our current system because, as the argument goes, if users agree to pay authors for what they could otherwise have "for free" the parties are ignoring an important distinction the law makes.37 The next question might be whether users shouldn't be willing to ignore other distinctions as well; shouldn't they, for example, agree to pay for reading others' works despite the fact that they have the right to look at a work for free right now; and shouldn't they be willing to pay for facts even though our system does not protect facts?

The Green Paper assumes it is already an infringement to look at a digital work since in the electronic environment looking at a work entails making a copy of it.38 Indeed, the singular idea of a copy as the basis for accounting logically results in payments for almost any conceivable interaction with digital information; in the electronic environment, access = copy.39 But if this were the law, it would represent the greatest expansion in the coverage of copyright ever conceived; it would obliterate the distinction between what we see now as unprotected and protected works, and between infringement and fair use. One implication of such a massive shift might be that in keeping with the way our law has changed historically, such a monumental expansion of copyright would logically require an equally monumental expansion of fair use.40 On the other hand, another implication might be the ultimate collapse of our system of copyright protection. It is almost impossible to say whether that would be good or bad without knowing what system would replace it.

As I indicated earlier, implications derived from comparing alternatives to our current system of copyright can be shocking, but that is not the only comparison we can or should make. It may be more productive to evaluate alternatives with reference to the underlying purposes of copyright law: If an alternative has some reasonable potential for success, it should merit serious consideration, even if it is based upon principles that are substantially different from those with which we are more familiar.41 In particular, if an alternative can achieve affordable and easy access, low transaction costs associated with getting permission, no or few restrictions on use, and payments to authors and publishers that are sufficient to induce creation, theoretically, we should be willing at least to consider it. The alternative of contracting can potentially achieve these ends and can do so without the necessity of prior change to our current system.

5. IMPEDIMENTS TO CHANGING RELATIONSHIPS.

There must be many factors that prevent publishers and users from developing new models of how to create, disseminate and exchange information in the electronic environment; I do not pretend to understand them all, or even very many of them, or to suggest that this should be easy. I do understand that so long as either party to negotiations focuses on nonnegotiable demands and reserves the right to be unreasonable, the other party will not be willing to give up its similar nonnegotiable demands or its right to be unreasonable, regardless of whether the two understand the untenable nature of such a bargaining process.

Nevertheless, I have heard it expressed by others and have myself thought for some time that if university presses, libraries and faculty collaborated, we would be able to go beyond the stalemate, beyond arguments about fair use. But there is (at least) one serious problem with this belief: there are many publishers who are not a part of the university community. The problem is that the statute gives authors, and by virtue of our traditions, their publishers, a monopoly, so they will always have the right to raise prices and there is nothing users seem to be able to do in response, except cancel subscriptions and make copies, etc., even though fair use and interlibrary loan may not be the solution they appear to be.

The ability of publishers to charge users whatever price publishers desire will probably insure a future for fair use in the next century: further (endless) escalation in prices will be met by more extensive reliance upon fair use and other legal exceptions; spiraling technological controls to prevent access and use will be met by equally sophisticated countermeasures by users; and each action by users will be met by increasing intimidation when pricing and controls fail to make buyers out of users. This is not an exciting prospect.

So long as users and publishers each exercise what appears in the other's eyes as the right to be unreasonable, that is the right to demand to use for free on the one hand and the right to charge whatever they so desire on the other, and without much publisher competition in certain fields of study relevant to this discussion, there is no reason to expect anyone to be willing to give up anything.

6. BREAKING THE CYCLE.

Users and publishers are not locked into this relationship. They have market options and legal options. Although no option is particularly easy or attractive because all involve rather fundamental changes in our perspectives on the problems, the electronic environment does offer us an opportunity to break through considerable entrenchment.

a. The Market Option

Perhaps part of the problem, at least with respect to scholarly publishing, is that university users and authors believe their publishing options are very limited. In fact, in the print environment, they are right. But, again, the electronic environment offers a unique opportunity to change the dynamic. The university community may have new power to create publishing alternatives, to transact business with more user friendly publishers, and to offer the fruits of its labors in fields dominated by the most problematic, over-priced publications to publishers who are a part of our community or who are in any event willing to deal with users in a reasonable manner.42 Authors could work together with university presses to create alternative channels for publication for subject matter that has become or becomes unaffordable. Competition is a much more powerful tool to bring down prices than cancelling subscriptions and making copies could ever be.43 We must recognize the strength that we have naturally because we are all part of the same enterprise.44

b. Legal Options for Change

When a legal structure functions suboptimally, there are typically a range of possible responses: we live with it for a certain period of time; we talk of changing the law either through legislation or the development of caselaw (sue or be sued); sometimes we ignore the law and contract for more favorable arrangements to the extent that doing so is permitted (copyright law generally permits this).

(1) Living with it.

We care too much to do nothing, especially because inaction at this time could have severe repercussions for access to information. Those who stand to profit the most from restricting access are not sitting back. We cannot afford to sit back either.

(2) Changing the law: Caselaw development.

Most cases raise more questions than they answer. Texaco II, for example, will undoubtably raise many, many questions in the minds of copyright attorneys (and their clients), even though the court explicitly tried to limit its holding to the facts of the case and states that no broad issues of fair use in the research community were before the court.45 Attorneys will not read the case and comfortably say to themselves, "Well, I'm glad that's settled." Instead they will pose question after question about the potential application of each and every sentence in the opinion to whatever prospective strategic battles they might believe are in their clients' best interests in the fair use war. Further, the cost/benefit analysis of this method of change does not make it a good choice, especially given the short effective life of caselaw in this field.

(3) Changing the law: Legislation.

Many facets of information creation, distribution, and exchange do not work in the electronic environment the way they worked in the print environment. These dysfunctions come at a time when access to information is becoming more and more critical to our international competitiveness. For example, a 50 to 100 year monopoly over access may be too costly a right to carry into the future. The constitutional guarantee to authors of the exclusive rights to their works for a limited period of time was intended to further the important goal of increasing knowledge and information. If it no longer furthers that goal but actually frustrates it by making it prohibitively expensive to attain,46 perhaps we need to change the details of the grant of rights.

Copies are another example: they are a meaningful unit in the print medium; they are not an equally meaningful unit in the digital medium; yet our natural inclination is to treat them the same. For example, controlling copies has become immensely harder, and I would argue, useless and counter-productive, in the electronic environment, yet most suggestions for protecting intellectual property still revolve around this mechanism.47 It is time to look for new economic controls besides counting copies.48

The words "electronic publishing" are an oxymoron. The definition of publishing does not have application to the electronic medium.49 I have seen many very fine discussions on the Internet that illustrate the difficulty of treating the two environments as though they were the same and reasoning by analogy to determine how the old law applies in new situations: Is the placement of a file into an ftp archive a performance or display on the part of the archive owner? In general, or when someone retrieves the file? When it's put there as an archival file or for "real time viewing?" Which state's or nation's laws would apply to acts of infringement committed on borders or in seemingly more than one place at a time, as would happen if infringement were accomplished through an international electronic network like the Internet? Such an analysis is complicated and confusing even under a print scenario but it is absolutely dizzying under a digital scenario. Sometimes the attempt to understand the new realities in the context of the old laws may not be very helpful, though it certainly is good mental exercise. But, is it really the best way to decide how to structure relationships to take best advantage of the new medium?

I have little hope that we will achieve changes in our statutes that fully address in a direct, thoughtful and forward-looking manner the complex issues of electronic information creation, distribution and exchange. Further, if such changes could be achieved, I doubt that the new law would be as responsive to the needs of the university community as it would be to, say, the cable, telephone and entertainment giants. And finally, if the university community were able to have a significant effect upon such theoretically insightful legal changes, it probably would not be long before the law would be hopelessly hobbled again by some new, unanticipated techno-reality. The times they are a changin' too fast for law to keep up.

Nevertheless, the drama of legislative change is beginning to unfold right before our eyes: the Green Paper and the comments to it presage a long and arduous battle; the parties appear to be assembled, not for a reasoned discussion of how best to utilize this medium for the public good, but for a land grab the likes of which we have not seen since the Government opened up the Northwest Territory for settlement. Thus, the legislative process will proceed, but it may not be a pretty sight.

Ironically, I see in the Green Paper's suggestions some continuity between the Working Group's vision of the future and what I am suggesting might be the end result of discussion and negotiation among the parties, that is, shifting the focus away from fair use, broadening the base of paying users, and focusing on access at a reasonable price. The Working Group, however, seems to be going about it in a very divisive manner, though that may simply be a function of the nature of the legislative process. If this were a transportation study and the Working Group were considering how to transition to driving on the left side of the road as they do in England, their recommendations would be the equivalent of "We'll start with trucks first." Some things should not be changed one side at a time; changing copyright law will require symmetry, give and take on both sides. It just will not work to permit copyright owners to have it both ways, able to charge for every conceivable use of their works and able to charge whatever price they so desire.50

Many commentators called upon the Working Group to establish another CONTU (The Commission of the New Technological Uses of Copyrighted Works) to consider changes to the law on a grander scale, but the Working Group rejected this idea. I think the idea has tremendous appeal, even though it might lengthen the process considerably. In fact, lengthening the process will give us all a chance to use the medium; laws that evolve out of actual experience will be far superior to those based upon theory. In any event, we do not need to wait for the law to develop to proceed on our own with private negotiations. Such negotiations may offer a flexible way to derive the benefits of fair use without the divisiveness of fair use.

(4) Contracting.

Contracting does, of course, have its flaws just as the other methods do. It would require immense cooperation between parties who have historically viewed each other as enemies; it would require that we each give up something we may think we can not do without, and it would involve ab initio premises that may undermine the entire structure of Copyright Law eventually... But, frankly, I believe many premises of Copyright Law have already been unalterably undermined by the electronic medium itself.

(a) Working with Publishers.

First to go would have to be the premise that publishers and users are and will continue to be adversaries. The real hope for change, at least for the research community, may lie in our recognition that publishers and users are not adversaries, or at a minimum that we do not need to be adversaries -- that we are in fact different pieces in the same puzzle. We are the different elements in an equation. We are all necessary and important to any solution. We can work together in ways that enlarge the return to all of us, not just financially, but in terms of the creation of knowledge, prestige, power, and recognition. We can recognize that our powers should not be used to bludgeon each other, but to support and encourage each other. We can verify right now where being adversarial has lead; and because we can reasonably predict that, carried into the electronic environment, it will lead to the same place again, but at a new and more costly level of expenditure, with new and more extravagant waste of resources, that is, the power of the electronic medium, we could decide instead not to be adversaries.

(b) Mutual compromise.

Neither side can be expected to unilaterally give up its leverage; trucks cannot go first; users will not be willing to give up fair use so long as they believe that publishers can demand nonnegotiable charges (and vice versa); but we could both agree to restrain ourselves (at least as an experiment) and in effect, walk away from the problems associated with fair use.51 What would be the quid pro quo for giving up fair use? It is no more than a fair price. That is my answer to the question, "Will we need fair use to derive a fair price..." The electronic environment in and of itself will not obviate the need for fair use; it only gives us a window, an opportunity, an impetus to structure a different deal. If we can achieve the benefits of fair use without fair use, then we do not need fair use.

Footnotes:

1. Thank you to John Garrett who provided encouragement and comment.

2. American Geophysical Union v. Texaco Inc., 802 F. Supp. 1 (S.D.N.Y. 1992) (hereafter, "Texaco").

3. American Geophysical Union v. Texaco Inc., No. 92-9341, 1994 WL 590563 (2nd Cir. Oct. 28, 1994) (hereinafter, "Texaco II").

4. In July, 1994, the Working Group on Intellectual Property Rights (the "Working Group"), a subcommittee of the Information Policy Committee of President Clinton's Information Infrastructure Task Force, released for comment a preliminary draft of its report, "Intellectual Property and the National Information Infrastructure" (the "Green Paper"). The Green Paper, responsive comments, testimony from the public hearings and other related documents have been made available by Professor Mary Brandt Jensen at the University of South Dakota's Gopher site. These papers should also be available through many university Gophers under Government Information directories. The government's Information Infrastructure Task Force bulletin board also maintains copies of some of these documents.

5. I have come to better understand the Copyright Clearance Center's role since undertaking this exploration. As Joseph S. Alen states, "Successful, large-scale copyright licensing can be accomplished without `bright line' definitions of fair use. ... So long as the parties stay focussed on the objective of fairness, our experience suggests that the fair use doctrine stated in general terms without `bright-line' definitions need not pose an insuperable obstacle to successful licensing arrangements." Statement of Issues for the Fair Use Conference held by the Working Group, presented by the Copyright Clearance Center, Inc., Joseph S. Alen, President.

6. "The Congress shall have Power ... to promote the Progress of Science and useful Arts, by Securing for Limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." 1 U.S.C. Const. Art. I, Section 8, Clause 8; Folsom v. Marsh, 2 F.Cas. 342 (C.C.D. Mass. 1841) (No. 4901).

7. Edward Samuels, The Public Domain in Copyright Law. 41 J. Copr. Soc'y, 137, 145 (1993).

8. Id.

9. Perhaps it was acceptable to have an esoteric balancing act for determining fair use when only a few lawyers and judges needed to use it once every 30-40 years or so. Today, with the ubiquitous nature of trade in information, and with the future promising an increase in such trade on an order of magnitude, everyone (even elementary school children!) will need to know about this balancing test and be able to use it on a daily basis. The Green Paper recommends that education must be more widely undertaken as a means of protecting intellectual property rights (Green Paper at 126-127). Educating university faculty and staff about the subtleties of fair use is a daunting task; it is difficult to imagine teaching the concepts of fair use to children in a manner that will satisfy both users and publishers.

10. Section 107. Limitations on Exclusive Rights: Fair Use

Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

11. The recent case, Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1174 (1994), involved such a refusal: Campbell (2 Live Crew) asked for permission but Acuff-Rose refused to allow Campbell to create and market a rap parody of "Oh Pretty Woman." The Court found that the parody might well be a fair use (the Court remanded the case to the district court for further proceedings) and further indicated that Campbell's asking for permission and being denied could not be held against Campbell in the fair use analysis.

12. The Second Circuit noted before it undertook its analysis of fair use in Texaco II that the body of fair use law had principally concerned the copying described above (parody, criticism, etc.), and offered the opinion that the traditional analysis was of questionable applicability to mechanical (iterative) copying (the kind of copying described in this paragraph and at issue in Texaco). Texaco II, 1994 WL 590563 at 3-4.

13. The Second Circuit addressed the issue of the changing "market" that is the subject of the fourth factor analysis in Texaco II, 1994 WL 590563, at 18. It held that the recent creation and growth of a viable market for licensing photocopies now makes it appropriate to consider the loss of potential licensing revenues in evaluating the fourth factor. Id. Thus, to the extent the Copyright Clearance Center, for example, provides a relevant market, lost revenues from photocopying will weigh against the user in the fair use analysis.

Jacobs, J., dissenting, refutes the idea that the fourth factor should favor publishers: he notes that the Copyright Clearance Center has only modest coverage, passes through sometimes unreasonable fees and that publishers already charge enough to cover copies in initial institutional subscription prices. Texaco II, 1994 WL 590563, Jacobs, J., dissenting at 18. In essence Jacobs asserts that the system works fine as it is (ie., leave it alone); the majority asserts that it will also work fine without fair use. The success or failure of the majority's proposition may depend upon how quickly the elimination of fair use is followed by other steps that bring balance to the equation.

14. Note, however, the possibility that we are moving towards a "remuneration-only" model that reserves for the author the right to require a fee for the use of her work, but denies the author the right to withhold permission. Marci A. Hamilton describes the evidence of this trend in Marci A. Hamilton, Artists May Have to Settle for Remuneration Alone, The National Law Journal, Monday, October 31, 1994, pp. C29-C30 (hereafter, "Hamilton").

15. For example, authorship, ownership, terms upon which a work will be licensed, including range of uses and fees, and payment mechanisms may all be incorporated into an envelope that surrounds and accompanies electronic works. Collective rights organizations should be able to facilitate the transfer of rights in works that are not "equipped" with their own rights information.

16. Texaco II, 1994 WL 590563, at 3, citing Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 549-50 (1985).

17. Robert L. (Bob) Oakley, Re: Haworth Press Journals, via email on the cni-copyright listserv, 4:18 pm, April 8, 1994; Don Berman, Re: Haworth Press Journals, via email on the cni-copyright listserv, 5:33 pm, April 11, 1994 (with additional comments regarding the relationship between fair use and the First Amendment); Mary Brandt Jensen, Re: Copyright & Fair Use, via email on the cni-copyright listserv, 3:26 pm, April 13, 1994; Buford Terrell, Re: Copyright & Fair Use, via email on the cni-copyright listserv, 4:07 pm, April 21, 1994.

18. Green Paper, p. 45 (an observation at the end of discussion of fair use that technology may obviate its necessity); Texaco, 802 F. Supp. at 23 - 25 and Texaco II, 1994 WL 590563 (the reach of fair use is commensurate with high transaction costs associated with asking for permission; as such costs decline, so should the scope of fair use); See generally Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600 (1982).

19. Texaco II's majority and dissenting opinions are an excellent example of this phenomenon. The majority opinion essentially embraces the market failure theory as a justification for fair use: fair use only exists to meet the need that the market cannot efficiently provide, in this case socially beneficial research related access to copyright works. To the extent the market can efficiently provide such access, fair use should no longer be necessary.

The dissent states flatly, "I do not agree at all that a reasonable and customary use becomes unfair when the copyright holder develops a way to exact an additional price for the same product." Texaco, Jacobs, J. dissenting at 6-7. The dissent rejects the market failure theory as justification for fair use. What appears to the dissent as circular reasoning (illogic) is the core logic behind the market failure theory of the majority. These two points of view do not appear reconcilable.

20. Pamela Samuelson, quoted in Trotter Hardy, Re: Constitution & Copyright, via email on the cni-copyright listserv, 5:15 pm, October 15, 1993.

21. Compulsory licensing schemes could play some role with respect to works that are otherwise inaccessible, for example, where the copyright owner cannot be located. See Comments of Professor Mary Brandt Jensen on the Green Paper; John Garrett, Re: Canadian System for Unlocatable Copyright Owners, via email on the cni-copyright listserv, 4:42 pm, October 3, 1994; John Garrett, Re: Compulsory License, via email on the cni-copyright listserv, 3:32 pm, October 4, 1994; Mary Brandt Jensen, Re: Compulsory License, via email on the cni-copyright listserv, 10:25 pm, October 5, 1994.

The Second Circuit suggested that if the parties in Texaco II are unable to resolve their dispute, the case may be "an appropriate case for exploration of the possibility of a court-imposed compulsory license." Texaco II, 1994 WL 590563 at fn 19. Also, see generally Hamilton.

22. Texaco, 802 F. Supp. 1; Texaco II, 1994 WL 590563. Numerous publishers and publishing associations sued Texaco alleging that its research library made infringing copies of articles from the plaintiffs' publications. Texaco circulated issues of plaintiffs' journals among Texaco's scientists who would request copies of those articles they wished to retain. Texaco defended, inter alia, on the basis that the copies were a fair use. By stipulation of the parties, the court considered only the fair use defense since the outcome on this issue could be dispositive of other issues in the case. The district court found that Texaco's copying was not a fair use and the appellate court affirmed "[t]hough not for precisely the same reasons," Texaco II, at 1.

23. But see Judge Jacob's strong dissent.

24. The reasoning of Texaco could not have been logically limited to the for-profit corporate environment because of the way the court reached its conclusion. Texaco lost the case largely on the basis of two facts: its research was done for profit and the court equated this fact with Texaco's copying being done for profit under the first fair use factor; and Texaco's unauthorized copying denied the plaintiffs revenues they would have received if Texaco had asked for permission to copy, thus tipping the fourth fair use factor in favor of the publishers. For a fuller discussion of the implications of this case for nonprofit research, see Georgia Harper, Professional Fair Use After Texaco: Second Circuit Affirms Lower Court's Decision, a publication of the Office of General Counsel, University of Texas System.

The Second Circuit greatly clarified the relationship between for-profit status and commercial or non-commercial purposes under the first factor but it took a very narrow view of what constitutes research purposes. Overall the court's discussion of the first factor does little to alleviate the concerns of nonprofit research entities that the holding will be generalized to them. The court's discussion of the fourth factor provides an even stronger basis for extending the holding of Texaco II beyond its context, despite the court's insistence that the holding is limited to the specific facts of Texaco's copying: it strongly endorses the Copyright Clearance Center and the role it has played in the development of a viable market for permission to photocopy.

When the weight of the third factor is additionally against the user (articles being considered entire works), it remains to be seen whether courts following Texaco II will consider typical nonprofit research copying "an otherwise fair use," and give it special consideration under the fourth factor analysis. See Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975); Texaco, 803 F. Supp. 1.

25. Additionally, as noted earlier, other aspects of fair use that are more critically affected by the requirement to obtain permission (parody, comment, criticism, news reporting) may not be affected at all by reduced transaction costs.

26. It is very easy to predict a healthy future for the fair use debate. The Working Group prescribed changes in Copyright Law described as "no more than minor clarification and amendment" (Green Paper at p. 8) to address issues raised by electronic media. Respondents, however, have characterized the Working Group's proposals as "dramatic expansion" of the rights of copyright owners (Comments of Professor Pamela Samuelson); enhancement of the copyright owner's exclusive rights by adding "the exclusive right to control reading, viewing or listening to any work in digital form" (Comments of Professor Jessica Litman); and "[giving] the copyright holder truly monopolistic control over access to copyrighted work in the electronic environment" far beyond that necessary to encourage owners to make their works available electronically (Comments of Professor Mary Brandt Jensen). Many commentators took issue with the Working Group's assumption that fair use might have little future prospect in the electronic environment.

27. And in those situations still handled personally, how easy will it be for a teacher, a librarian, a doctor, a high school or elementary school student, an author or anyone else to determine what is fair use?

28. The Working Group noted that legitimate users of copyrighted works pay higher prices to cover infringing uses (Green Paper at p. 115). To the extent that fair use and interlibrary loan copies are perceived as infringing, this principle applies here as well; Texaco II, Jacobs, J., dissenting, notes as well that serials prices for institutional subscriptions are twice those for individuals. Texaco II, 1994 WL 590563, Jacobs, J. dissenting at 18. The "fuzzy" boundaries of fair use and interlibrary loan contribute to the perception of infringement: indeed, fuzzy boundaries give those on each side much reason to believe that the other side's activities near the boundary are actually "over" the boundary.

29. Nicola Daval, Rising Prices Continue to Plague ARL Libraries, ARL Newsletter, May, 1994, pp. 1-2. Serials purchased in ARL libraries over the period 1986-1993 were down 5% while expenditures were up 92%; monographs purchased were down 23% while expenditures for same were up 16%. Id. at 1.

30. Compare the similar costs of making "free" interlibrary loan copies. G. Jaia Barrett, The Cost of Interlibrary Loan, ARL Newsletter, January, 1993, pp. 1-2. "Extrapolating the results of the cost survey to these figures suggests that in 1991-92 all ARL libraries spent well over $71 million on interlibrary loan operations: $26 million on operations to borrow materials for local users and $45 million to loan materials to other libraries." Id. at 1.

31. If the amount users are already spending incorporates a charge for copies publishers believe are infringing, it is easy to understand why users mistrust publishers' motives and intentions: by demanding permission fees in addition to inflating subscription prices, they are insisting they have the right to charge twice, not just once, for fair use copies.

There is, nonetheless, room in the equation for charges for services that are above and beyond those provided in the print environment. For example, in many instances the speed and convenience of express document delivery services that pay copyright fees for electronic access (in the case of libraries, in accordance with Section 108 and/or the CONTU guidelines) is well worth the extra expense.

32. In all honesty, the early court cases were dealing with uses other than the kind we are considering here: they did not concern themselves with noncommercial iterative copying for research and educational purposes. If they had, they likely would have found such uses completely outside the scope of matters with which copyright concerned itself; they would not have even reached the issue of fair use. But technology has changed that theoretical result.

33. Gateways, Gatekeepers and Roles in the Information Omniverse; Proceedings from the Third Symposium, November 1993.

34. Indeed, in earlier publications I have commented that this premise was unacceptable since users should not be charged for copying that they have the right to do for free. See Georgia Harper, Professionals' Fair Use of Journal Articles for Scholarship, Reference and Research, a publication of the Office of General Counsel, University of Texas System.

35. One contract required the library to include the following notice on each printed copy of an image from the database: "copying is prohibited." Since copying is not legally prohibited, what can be the purpose of such a statement other than an attempt by the database proprietor to affect the fair use rights of third parties, the library's patrons, using the library as its agent against them.

Arguably, a library may contract away its own right of fair use, but it can not contract away a third party's right of fair use; yet such provisions have the appearance of attempting to accomplish just that. (The contract discussed herein was the subject of a post by Jennifer Paustenbaugh, Re: Meaning of Copyright Notice/Warning, via email on the cni-copyright listserv, 6:48 pm, May 6, 1994.)

36. Indeed, trying to take such things into account may be fruitless in any event if it only means that the negotiations would have as a central feature the same dispute over the extent of fair use though posed as "what percentage discount should fair use equal?" Wouldn't publishers feel they had to charge more initially (or next time) to counter the inevitable fair use discount?

37. Pamela Samuelson and Bob Glushko make this point in their critique of Ted Nelson's proposal for a kind of national database called Xanadu. Pamela Samuelson and Bob Glushko, Intellectual Property Rights for Digital Library and Hypertext Publishing Systems, 6 Harv. J. L. & Tech. 237 (hereafter, "Samuelson").

38. The Green Paper at pp. 29-30. The Green Paper does not question this assumption as it might apply to ordinary reading of digital works and appears to presume that such use would not be a fair use.

39. Francis Dummer Fisher, The Electronic Lumberyard and Builders' Rights, Change, pp. 13-21, at 21, May/June 1989 (hereafter, "Fisher").

40. This is precisely what many of the comments to the Green Paper have suggested; without a corresponding expansion of fair use, the proposed changes will drastically alter the balance of rights between owners and users of copyright. For example, if the Working Group's suggestions for amending Copyright Law are enacted, free browsing and lending of electronically stored works will be eliminated, resulting in a tremendous burden upon Sections 107 and 108 for users' rights of access. These sections, however, are just too limited under even the most generous interpretations to accommodate the increased burden without clear, unambiguous, and substantial expansion. But rather than proposing an expanded role for fair use, the Green Paper evidences very little regard for the role of fair use in the future (Green Paper at p. 45).

On the other hand, the relentless nature of escalation makes it possible to see where this is going and to consider other ways to interact in the electronic environment. The idea of an exclusive rights regime moderated by an esoteric balancing act in favor of some public uses to some generally unknowable extent may have gone about as far as it can go.

41. The Internet itself is an example of a copyright culture of sorts that diverges in some important ways from our statutory regime. Those who participate seem to value their copyrights quite differently from those who do not. It is not true that participants "check their copyrights at the door," but they evidence little concern for who might be making copies of or displaying their posts. They probably would protest commercial exploitation of their contributions, but for the most part they appear to value discussion, sharing and the development of ideas, activities that clearly further progress of science and the arts, without reference to the incentive the law offers in exclusivity.

Similarly, negotiated agreements that side-step fair use can produce satisfying results as the steady growth of licensed databases acquired by our libraries indicates. I have, however, had at least one occasion to advise a department to refuse to license a database of images on terms that failed to meet even minimal needs of the user community.

42. There is an undeniable irony in the cries of the university community that science, technical and medical journals are overpriced: it is by many accounts the university system of faculty rewards and incentives that has helped to put certain publishers in control. The Report of the Association of American Universities' Task Force on Intellectual Property Rights in an Electronic Environment (April, 1994) (hereafter, "AAU/IP Report") recommends that the university community begin to take advantage of the opportunity the electronic environment offers it, take some control over its copyrights and better manage the process of scholarly publication.

43. The AAU/IP Report suggests that an alternative scholarly works database shared by university faculty, libraries and presses would assure the community access to precisely the kinds of materials threatened by spiraling prices. One member of the Task Force suggested that "[w]here scholars are writing primarily for other scholars, the process will arguably be managed directly by faculty involved and conducted outside the "money economy" of conventional publishing." Whether alternative distribution systems develop by conscious design or simply naturally evolve from practical use of the medium, it seems clear that there could be multiple "tiers" of scholarly publication, and with respect to the greater body of copyright works, multiple tiers of publication generally.

44. See generally, Colin Day, The Economics of Electronic Publishing: Some Preliminary Thoughts, from Gateways, Gatekeepers and Roles in the Information Omniverse; Proceedings from the Third Symposium, November 1993; AAU/IP Report.

Jean-Claude Guedon, in remarks before the 4th Symposium on Scholarly Publishing on the Electronic Networks (November 1994) suggested that since the public funds most research at one end of the research activity continuum and subsidizes libraries to purchase the results at the other end, scholarly publication and library functions could theoretically merge and eliminate the transaction that seems to interfere with the unity of an essentially public undertaking.

45. Texaco II, 1994 WL 590563 at 2.

46. Fisher, p. 18. "Charges for the right to re-use bits and pieces of expressions in new and unanticipated combinations may not only be unnecessary to promote the original creation, but may also dampen re-creations" because of disagreements over the value of the contribution. In one case, the author of the original piece may price the new use based on his idea of what the original was worth by itself; in another, he may price the new use based upon what the new work is worth instead of what was necessary to induce the creation of the original. In neither case are the original copyright owner and the new user likely to agree on the price. See also discussion of library preservation issues associated with long copyright terms: Mary Brandt Jensen, Re: Term and Purpose of Copyright, via email on the cni-copyright listserv, 12:04 pm, October 20, 1993; Mary Brandt Jensen, Trotter Hardy, Don Berman, Re: Copyright & the Constitution, via email on the cni-copyright listserv, October 26, 1993.

47. John Perry Barlow, The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age, Wired, March 1994 (hereafter, "Barlow"). Barlow describes the fundamental problems we are encountering as we attempt to make our intellectual property laws stretch to apply to technologies that are likely to alter the calculus of human interaction more profoundly than any technology ever has and he concludes that the laws cannot be made to fit: "we simply don't know how to assure reliable payment for mental works ... [unfortunately] at a time when the human mind is replacing sunlight and mineral deposits as the principal source of new wealth." Id at 86. He predicts that the increasing difficulty of enforcing our existing copyright laws in the electronic environment will eventually imperil the free exchange of ideas. Id.

48. Barlow, p. 128-129. Barlow describes a number of possible economic controls based on relationship rather than on possession (control over copies); the value of real-time performance, provision of service and support, mediating among users, and providing opportunities for direct interaction with authors.

49. The Green Paper recommends changing the law to make electronic distribution the equivalent of publication. This recommendation, like all the others the report has made thus far, favors the rights of copyright owners.

50. Similarly, Texaco and Texaco II seem to knock the legs out from under users with little consideration for the untenable position this will put them in with copyright owners able to charge for more uses and whatever price they demand. If the second step in this process were that subscription prices and permission fees began to drop as the volume of requests increased, the result would be encouraging, but the second step appears instead to be that users are reacting quickly to reestablish the lost balance, thus assuring a long and heated dispute over any move to a market-driven mechanism instead of fair use. Perhaps publishers are missing an opportunity here in the "off-balance" period. Perhaps, as well, this same opportunity is what the Texaco II court had in mind with its suggestion in footnote 19 that if the parties were unable to resolve their dispute, the case was appropriate for the imposition of a court-ordered compulsory license. Texaco II, 1994 WL 590563 at fn 19.

51. As Paul Robinson's automatic fortune cookie once opined, "No problem is so formidable that you can't just walk away from it." Via email on the cni-copyright listserv.

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