Wernick is a member of the Contracts Committee of the American Society of Journalists and Authors, the leading nationwide organization of freelance nonfiction writers, and also belongs to the Authors Guild, the nation's largest organization of published writers. She and her fellow freelancers compare their writings to bicycles.
"If the owner of the bike doesn't choose to let you ride it for free," she explains, "you either pay a rental fee or you leave the bike alone. One person's convenience doesn't justify appropriating another person's property. The same applies to my writing."
Publishers and authors think the analogy between wheels and words-what lawyers designate "intellectual property"-is a good one, and an important concept in the face of a trend on college campuses.
An increasing number of professors today opt not to ask students to buy textbooks for a course. Instead, they choose what they consider the best parts of several different books or articles and order a "coursepack" from the local copy shop. The students appreciate the fact that the coursepack is easier on their wallets than the price of the several books they might otherwise have had to buy.
But what if neither the professor nor the copy shop bothers to ask the copyright owner for permission to copy the pages and sell them to students? Publishers and authors of works that are copied say if they're not asked, they're being ripped off.
Coursepacks often include excerpts from popular commercial books and articles as well as academic works. Depending on contractual arrangements between author and publisher, one or the other may be entitled to keep any permission fees charged for reuse, or the two may share the income. Copying without permission, say both authors and publishers, is simple theft of intellectual property.
The issue has been in the news recently as the result of a February ruling by a federal appeals court. The judgment reversed a lower court decision by declaring that copying for coursepacks without permission of the legal copyright owners was permissible "fair use."
The plaintiffs-Princeton University Press, Macmillan, and St. Martin's Press-had sued a copy company, Michigan Document Services, which serves the University of Michigan community at Ann Arbor. The Association of American Publishers is coordinating the three publishers' appeal for a rehearing. That move has been supported by an "amicus curiae" (friend of the court) brief filed by three major national writers' groups-the Authors Guild, the American Society of Journalists and Authors (ASJA), the Text and Academic Authors Association (TAA)-and the Authors Registry, the royalty collection and licensing agency representing 50,000 members of dozens of writers' organizations.
In ruling against the three publishers, the U.S. Court of Appeals for the Sixth Circuit upheld the claim by Michigan Document Services that it is allowable "fair use" to copy even extensive excerpts of published works (which in this case included as much as 95 pages from a single book, 30 percent of the book's total text), and to sell such works as parts of coursepacks without permission of the copyright holder.
Although copy shops regularly obtain permission and pay fees to reproduce copyrighted works, the Michigan shop boasted to professors that it produces coursepacks with "No Delays Waiting for Permission."
Fortunately, from the publishers' and authors' perspective, this attitude is not universal. Dick Litzsinger, president of Follett Corp., the nation's largest operator of college bookstores and a major producer of coursepacks, responded to the ruling by saying that his company would continue to obtain permission for copying and pay the appropriate fees. "People who create materials deserve to be paid," Litzsinger said.
In any event, publishers and authors point out, the single court decision, on appeal, would have no mandatory force outside the Sixth Circuit, which covers Michigan, Ohio, Kentucky and Tennessee.
In fact, the Sixth Circuit court's majority opinion runs counter to the decision in a case decided at the trial court level in New York in 1991, in which the same kind of copying by the Kinko's chain of copy shops was found not to be fair use but instead was held to be theft of intellectual property.
"How can a copy shop justify making profits on the backs of the authors who wrote that material and the publishers who produced it?" asks Sally Wendkos Olds, coauthor of two leading college textbooks on child and adult development, past president of ASJA, and a member of all the organizations that filed the authors' brief.
The publishers and authors base their argument on a principle enunciated in the U.S. Constitution. Federal copyright law was enacted pursuant to clause 8 in Article I, section 8, which gives Congress the 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."
Says Kay Murray, Director of Legal Services for the Authors Guild and the principal author of the authors' brief: "In passing the copyright law, Congress provided market incentives to authors to ensure that creative works would flourish in this country. Those incentives certainly include permission fees for reprints of published works."
While the idea of all written information being free for the asking may be appealing, say authors and publishers, the notion contains a pitfall: If no one gets paid, who will create that information?
"With no economic incentive to write or publish, most scholarship, information and entertainment would grind to a halt," adds Ronald E. Pynn, Ph.D., professor of political science at the University of North Dakota and president-elect of the Text and Academic Authors Association. "There's nothing unscholarly about earning money. Authors and publishers have to pay their bills, just like everyone else."
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