Our conclusion that government photocopying is not invariably noninfringing does not, ofcourse, answer the question whether government agencies should enter into licensing agreements forphotocopying, and if so, what the terms and conditions of such agreements should be. In answeringthat question, there is an inescapable tension. On the one hand, because of the highly fact-bound natureof the fair use inquiry, it is difficult to ascertain in advance which governmental practices will, or will not,be fair uses: there is an "endless variety of situations and combinations of circumstances that can rise inparticular cases." House Report at 66, reprinted in 1976 U.S.C.C.A.N. at 5680. Such uncertainty,when viewed in isolation, might weigh in favor of entering into relatively broad licensing agreements, soas to ensure that an agency's photocopying will never be infringing. On the other hand, and in additionto the desire to avoid unnecessary costs, there is an important legal consideration that counsels againstentering into unnecessary licensing agreements, and in favor of limiting such agreements to encompassonly those photocopying practices that are infringing -- namely, the concern that general custom andusage may be integral to the fair use analysis. (16) Indeed, at least one court has opined, in particular, thatwhether it is "fair," under the copyright law, to engage in a photocopying practice without compensationmay depend, in part, on whether similarly situated entities customarily agree to pay a fee to thecopyright holders. (17) We have no occasion here to consider whether that court was correct in thisregard; but it is possible that other courts may follow suit. Accordingly, if government agenciesroutinely agree to pay licensing fees to engage in photocopying practices that were fair uses at the time,there is a chance some courts may conclude that a growing or longstanding custom of paying such feesweighs against a finding that such photocopying practices are fair uses when unlicensed. Thus, anagency that decides to negotiate a photocopying license should seek to limit the scope of the licensingagreement so as not to cover those photocopying practices that the agency, in good faith, concludes arenot infringing.
Holt Elements Of Literature Fourth Course Answer Key 26
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