What is the meaning of "fair use"?
> Christian--what is the meaning of "fair use" that you are putting
> on the bottom of your articles? thanks [...]
I am choosing to CC Kabissa's and AFRO-NETS' moderators and prev-
ges.OERT (online education research and training) because it seems an
important question that could benefit other readers in Southern Af-
It is interesting that you wrote "your articles". It shows how impor-
tant it is to clarify that it isn't "my articles" but someone's else.
There is an excellent paper on 'copyright fair use' from the 50's:
Photocopying by Libraries and Copyright: A Precis
by M.O. Price (1959)
Library Trends 8(3):432-447.
If you want a copy of it, I had scanned it for the participants of
the eCertificate on "citation based bibliographies" last year (the
file is 1,47MB large).
There is also an URL often used by E-DRUG moderators: "Fair use doc-
trine of international copyright treaty"
I think 'copyright fair use' can be described as an exception that
dates back to before photocopying was introduced.
It comes from the old conventional way students used to learn at uni-
versities, where it was acknowledged that copying was an intrinsic
part of learning and was necessary for scholar studies and research.
There were no fixed terms but a kind of "gentlemen agreement" left to
In principle the (c) copyright sign may be assumed by default when
someone writes/draws/sings/creates perfumes/etc. as long as it is
her/his own work.
The mention of a 'fair use' appears important to me, because it warns
someone that the material appearing in one's message is strictly
speaking not "one's own writing". Graeme Hart had developed an inter-
esting copyright footer (Online-Ed, http://www.whirligig.com.au/),
that explained the distinction between his work as editor and the
works that appear within his messages.
For instance, someone may assume to some degree, that I do not object
that my messages are sometimes forwarded without my explicit consent
, but it is important that I warn them whenever copying my message
may cause them a legal prejudice.
For example, if I copy The Guardian's or SABC News articles, my own
status plays an important role. A judge would always check (a) if I
have gained from copying, (b) if it has caused a loss of revenues
(this is the reasoning that forced http://www.napster.com to close
its free file sharing system and to replace it with a "for fee" ser-
I personally don't gain from my messages, but this may not be true
for all readers who choose to reproduce my messages, at least I may
not assume that, since I have no contractual arrangements with them.
This issue is lukewarm, but it did suffice to close down another
server called "anon.penet.fi" in Finland, that was used among others
by scholars to anonymously interview people in jail (an important
mean of communication for inmates with the outside world: the US has
the largest jail population in the world with over two Millions who
enjoy little human rights: sometimes even with leg chains in tents in
the middle of deserts under cold nights and hot days ... not to speak
of revolting death sentences -- most of them may not cast their votes
as US citizens, one reason why Al Gore did not fully benefit from the
support of the African American community!).
The anon.penet.fi system was heavily abused to send porno materials,
although the reason that led to its closing was the disclosure of
sensitive documents of a religious group: the Church of Scientology.
The server owner in Finland (Johan Helsingius who operated the pseu-
donymous remailer anon.penet.fi) was forced to disclose the true "e-
mail address" of an anonymous message reproducing a document of the
Church of Scientology.
The Church of Scientology invoked the copyright international treaty.
Johan Helsingius argued that revealing the e-mail identity of author
would break the trust of users and the terms of privacy of
anon.penet.fi. There was a USENET outrage, but justice in Finland had
to comply with International arrangements because the materials was
copyright of that "religious" group.
Retrospectively I feel that "fair use" was quite appropriate in that
case and should have sufficed to dismiss the claim of the Church of
Scientology, since the intention of the anonymous sender was to "edu-
cate" and to "research" the dangers posed by the "religious" group.
Thus in terms of "copyright" (I insist *in terms of copyright*) there
were no prejudices made to the religious group since "fair use" ap-
plied (education, scholar and research purposes), even though on
other legal terms they could have claimed damages, but not on an in-
ter-continental basis (US/Finland).
But there was much more at stake in that "anon.penet.fi". Perhaps
something that Finland did identify with (Finland is a European coun-
try with a rare record of "Internet avant-garde, in comparison with
lag-behinders such as France). Namely turning the Internet from an
anarchic collaborative inter-continental success (do remember that
the commercial ventures such as AOL and CompuServe were not as suc-
cessful as the USENET) into a commercial profitable new "gold-rush".
The outcome of the anon.penet.fi judgement did intimidate a lot of
folks on the USENET (a dial-up network that predates the Internet in-
<<Yes, USENET predates the Internet; in those days,
news was passed via regular dial-up connections.
There are still many sites that participate in USENET
in this fashion>>
see page 153, "The Whole Internet" by Ed Krol, 2nd Edition, O'Reilly,
April 1994, ISBN 1-56592-063-5).
One other important step that involved copying, was the commercial
server www.dejanews.com that chose to reproduce all messages from the
USENET newsgroups onto the web (without the explicit authors' consent
by the way! thus breaching International copyright arrangements --
what closed napster.com and anon.penet.fi, opened dejanews.com! I
wonder how law schools can teach anything rational out of this, be-
Before dejanews, newsgroups' messages had an explicit "date of expi-
ration". With dejanews.com (now www.deja.com) newsgroups became web-
publications ignoring the expiration date, with a kind of imposed
world-wide copyright transfer from authors to the US based web-
server. The server of dejanews.com generated revenues from adds with-
out passing them onto authors. Then came onelist.com, egroups.com,
servers (that went up to including the right to change the terms of
use without notification of users! By now this must no longer be a
law school's joke but a recommendation: click "yes" to loose all your
rights and soul! a Faust virtual remake).
Topica.com introduced an intermediate trick by sharing revenues with
a "class" of users: the list-owners. You may be surprised by reading
the word "class"...
This concept of "class" so typical to object-thinking present in OOM
(object oriented modelling, an essential property of modern program-
ming languages), did influence the way persons are "materialised" as
object instances on the Internet (you are not a person, you are an
instance of the class "user": this isn't a joke, it is exactly what
appears in an otherwise excellent German book for children, in which
they explain OOM as follows:
<<Was versteht man hier unter einem Objekt?
Das sind doch eigentlich diese Dinger, die staendig
irgendwo herumstehen oder sich um uns herum
bewegen. Also z.B. Haeuser, Baeume, Autos, Leute.
Auch Du bist ein Objekt. Und zwar vom Typ Mensch.>>
see page 29, "C++ fuer Kids" by Hans-Georg Schumann, Ed. mitp, Bonn,
1999, ISBN 3-8266-0495-4). OOM may explain a lot about the psychology
of Internet programmers and the way they view humans, hierarchy,
power, control and communication (so called "methods").
Why does Topica.com choose to share revenues with "list owners" and
not with the message authors? I find it hard to justify this approach
since both so-called "classes" of user are de facto registered with
The rational behind it is clearly a game of "power and control" that
encourages owners to devote more work into their list and to impose
more invasive advertisement forms such as top-message or intra-
message adds (other servers such as egroups.com failed to move their
adds from the bottom to the top in September 2000).
But the arrangement between Topica.com and the list-owners is border-
line with a true "employment contract" of the list-owners by
Topica.com. If one can close "anon.penet.fi" on a borderline invoca-
tion of copyright, one should be able to claim retirement and health
benefits from Topica.com on a borderline invocation of employment.
That would be common analogical sense.
Clearly, reproducing messages of others is an issue that mixes to-
gether revenues, education, scholarship and research. So "fair use"
will play an increasing role in the way we collaboratively communi-
cate by Internet.
The fact that the Internet relies on servers (and on the consequences
of OOM) makes the whole issue quite difficult, especially with the
web: everything becomes a world-wide publication.
It could be predicted that there will be a come-back of dial-up, or
home-based communication. For that purpose the re-introduction of the
old % in email SMTP-syntax would be necessary, to allow emails to
travel through several dial-up connections: e.g.
<mailto:user%mailbox%relay2@relay1> would mean that an e-mail for
user@mailbox has to be sent through the two relays before reaching
the mailbox; this helps cutting costs of sending e-mails when dial-
ing-up over very long distances, by using a combination of several
small dial-up distances (provided that intermediate relays accepts to
do the favour). There are other advantages such as creating home-
based education environments using a single email address to avoid
the use of Internet servers.
Thus by placing a "fair use", I am basically trying to say that I
feel that the article I am reproducing is an important information
which serves "education", "scholar" and "research" purposes and that
it justify to wave copyright fees.
However in Southern Africa where I am assuming that the server of
AFRO-NETS is virtually placed (it is in fact located in the US I
think, as Kabissa's is), the common wisdom is towards ignoring "fair
use" and charging students.
The UNISA, one of the largest distance universities in the world,
chose to charge students a fee for reprints. Students receive bound
collections of reprints, with a table of contents, etc., and have to
pay for it.
As soon as a fee is collected then it is difficult to claim a "fair
use". So distance universities tend to negotiate copyright fees for
students who "gain" from price cuts.
But in comparison to face-to-face students, distance students are
charged more for reading and get less diversity of readings (they can
not browse quickly books at the library to preview other related top-
ics -- and the student's money fatigue overrides reading fatigue,
whereas one would think that it should be other way around in educa-
tion, shouldn't it?).
In my case I am clearly not charging for reproducing. But if someone
else would charge or collect money for displaying my messages, then
there is a legal difficulty.
For example AFRO-NETS was mirrored on egroups.com, which is now ya-
hoo.com. But Yahoo! places one to three advertisement banners on
their pages, thus they collect something each time they show a mes-
sage. Using a centralised OOM system of advertisements, commercial
servers can synchronise information about object-oriented users and
secure sensitive information about their interests: you know that
coockie saying "CheckForPermission". When you say [OK] to the "Check-
ForPermission" coockie, you are basically saying: "yes I give to a
centralised world-advertisement agency all my rights and my soul,
please make a profile about me and forbid me the right to view it!".
This is basically what you say by accepting web-coockies.
In case I reproduce commercial materials, the preview of my message
on a commercial server that adds advertisements is becoming a "hot
issue": for example, SABC News or the Guardian are loosing legitimate
revenues that Yahoo! collects instead. That's not fair, is it?
In that respect, I feel that AFRO-NETS should not be copied onto com-
mercial servers, so that contributors could use their judgement to
reproduce full text or "deep-links" accordingly.
I wonder if a "special discussion" on copyrights, patents and trade-
marks (and by extension on Richard Stallman's GNU copyleft - a legal
document started at MIT in 1975 as part of the emacs-editor and that
enabled Linux and many other projects, http://www.gnu.org) would be
appropriate for readers of Kabissa and AFRO-NETS, as they may not
have had the chance to reflect on these issues before.
Clearly I have some strong emotional views on this because I am "sick
and tired" of unemployment and of witnessing its impact on health and
wealth and because I genuinely don't believe in "globalisation" legal
arrangements to resolve those market-shortcomings...
I belong to that generation who still misses the heart and the advo-
cacy of Princess Diana, will never forget her remarkable contribution
to AIDS and continues to regret all the special attention that the
world's poor lost with her.
But nevertheless other persons in Southern Africa may see in these
global legal concepts an opportunity to generate revenues and wealth.
I may disagree with the wisdom (philosophy) of this development ap-
proach, but they have a right to unbiased information, thus I would
suggest to invite persons who have an experience with explaining
these issues on discussion lists: there were for example a few per-
sons on the DEOS-L list who would perhaps accept to present "fair
use" and answer questions.
Hope this helps.
 Btw, I feel that "copying" and "databasing" are two entire dif-
ferent things: the fact of forwarding one's own message on one hand,
and of indexing/storing on another hand, are clearly quite different.
Those index act as a communication quencher by intimidating people
from voicing their ideas and emotions. In my opinion, the control of
indexing should remain in the hand of the authors at all time, not in
those of a third party (server). That is why I often write that web-
pages containing "names" and/or "e-mail addresses" should be pro-
tected from indexing using a "robot" HTML-meta-tag (something that
tells AltaVista, Infoseek, etc. to ignore requests to index the
<meta name="robots" content="noindex">
Send mail for the `AFRO-NETS' conference to `<email@example.com>'.
Mail administrative requests to `<firstname.lastname@example.org>'.
For additional assistance, send mail to: `<email@example.com>'.