A FACULTY GUIDE TO PHOTOCOPYING
FOR CLASSROOM USE
Robert J. Kasunic, Esquire
The issue of photocopying for
classroom purposes has become a significant concern for faculty members of many
schools and universities. Educators should be aware of the rules governing
photocopying. In particular, they should know when it may be done without the
consent of the copyright owner, how exposure to liability may be reduced, when
and how permission to photocopy should be obtained, and under what circumstances
a university will indemnify an educator against claims of copyright infringement
arising out of photocopying for classroom use.
Educators need to have clear answers to all of these questions. The
present state of copyright law, however, demands more than answers. It requires
that the decision of whether to photocopy copyrighted material for classroom use
be based on a teacher's informed understanding of the subtlety and complexity of
the copyright law and the doctrine of fair use. Many educators believe that
knowledge of copyright law is unnecessary in order to carry out their roles as
teachers. Yet, there are many practical reasons why faculty members should
become informed on the law of copyright, such as damages for infringement,
restrictive university photocopying policies, and restrictive policies by
commercial copy centers.
Copyright Act of 1976 1 specifies the exclusive rights of copyright owners and
permits actual or statutory monetary damages when copyrights are infringed.
Actual damages are awarded when the copyright owner proves the direct results
of the infringement. This often includes profits realized by the infringing
party. Statutory damages of up to $ 100,000 may be imposed if the copyright
owner proves that the infringement was committed willfully. Statutory damages,
however, are precluded if the court determines that an employee or agent of a
nonprofit educational institution had reasonable grounds for believing that a
particular use was fair. 2
Educators may underestimate the
likelihood of getting sued for copyright infringement. While the likelihood of
suit may not be great, most university administrations have adopted copyright
policies to limit potential liability for
infringement. These university policies are often more restrictive than
the Copyright Act itself.
Moreover, most commercial copy centers have adopted restrictive photocopying
policies in accordance with copyright law and a recent decision in the United
States District Court for the Southern District of New York. 3 As a result of
this decision, a teacher can no longer walk into most commercial copy centers
and ask to have copyrighted material photocopied without first obtaining
permission from the copyright owner or paying for the copy center to obtain
The purpose of this article is to provide educators with a practical step‑by‑step guide to copyright law as it relates to educational photocopying. It will present a logical analysis that educators should follow when faced with the necessity or desire to photocopy material for students. Figure I presents a flow chart of the sequence of the steps followed in this guide.
One. First, determine whether a copyright exists for a given work. This
requires a brief analysis of the material to determine copyright duration and
whether the material has notice of a copyright.
Two. If a copyright exists, then review the "Agreement on Guidelines for
Classroom Copying in Not-for-Profit Educational Institutions with respect to
Books and Periodicals" ("Guidelines"). 4
The Guidelines represent the minimum
standard of the fair use doctrine and, therefore, it is permissible to photocopy
copyrighted material within these guidelines.
Three. If the teacher wants
to photocopy material outside the limits of the Guidelines, a third step in the
analysis is necessary. The educator should examine the intended use of the
material in relation to the purpose of the copyright law and the doctrine of
fair use. An understanding of the doctrine and its four codified factors is
essential for determining whether a particular use is fair.
Step Four. Once an educator understands the fair use doctrine, he must then examine the Copyright Act's damage and excuse provisions to determine the risk of suit for copyright infringement. This fourth step outlines a teacher's options if he is uncertain whether fair use is applicable.
Five. The fifth step examines what
to do if fair use does not apply and explains how to obtain permission to
Six. The final step in the
analysis considers the academic structure and the process of photocopying and
distributing material to students. The teacher must consider the academic
environment, including whether the teachers, the school, or an outside service
photocopies and/or distributes materials for classroom use.
At first glance, the scope of
this paper seems broader than necessary. Nevertheless, photocopying copyrighted
material beyond the boundaries of the narrow Guidelines requires either
permission or a claim of fair use. Therefore, since permission is usually
difficult and time-consuming to obtain, a Sufficient understanding affair use in
copyright law is an essential tool for an educator. Providing material to
students and updating that material is an important aspect of teaching, and if
the right of fair use is not understood and used by educators, it will be lost.
ONE: IS THE MATERIAL COPYRIGHTED?
most obvious sign that a work is copyrighted is the presence of either
"Copyright," "Copr.," or "ă"
in addition to the name of the author or copyright owner and the year in which
the work was first published. This copyright notice is usually located in the
front pages of a book or periodical, but the notice may appear in any location
which is reasonably conspicuous. For compilations, such as periodicals or
anthologies, the volume, not each article, requires a copyright notice. Some
journals permit photocopying for certain purposes which are usually explained
near the copyright notice.
Published works which were never copyrighted. Generally, works published before January 1, 1978 without copyright notice are not protected by copyright law because they have entered the "public domain." These publications may be copied without restriction. If the copier is informed by the owner that the material is copyrighted and there is no notice due to an omission, the copyright owner has the right to remedy this defect by informing the copier of the existence of a copyright. No liability attaches until the copier receives notice from the copyright owner.
Published works whose
copyrights have expired. Copyrights on materials in
effect prior to 1916 have expired because the maximum protection available prior
to January 1, 1978 is seventy‑five years. Some material copyrighted after
1917 was initially covered for twenty-eight years and renewable upon
request. Before copying such materials,
assume that they are still protected or contact the publisher, author, or U.S.
Copyright Office in Washington, D.C. and inquire as to whether the copyright was
renewed for an additional twenty‑eight years. If fifty-six years had
gone by before September 9, 1962, the material is in the public domain and may
be copied. 5
Material prepared by the United States Government or by an employee of the
Federal Government within the scope of his official duties are not copyrightable
under §105 and may be copied freely. The U.S. Government may, however, receive
and hold copyrights transferred to it by an assignment or bequest. These
transfers of copyright are indicated by notice.
Some material prepared by state governments may be copied, but it important to
note that states, unlike the U.S. Government, are allowed to copyright works. It
is also important to determine whether the state government is the actual
publisher. In some states, private companies publish the codes and case
reporters, thus acquiring copyrightable elements, such as headnotes or the
selection and arrangement of the material.
To be cautious, all other publications should be assumed to be copyrighted. In
addition, on March 1, 1989, the United States became a member of the Berne
Convention, and by doing so removed the requirement of copyright notice. All
materials written on or after March 1, 1989 are copyrighted with or without
notice unless the copyright is expressly waived.
Unpublished works have been given special protection by the courts under § 107
of the Copyright Act of 1976, which was recently amended. Unpublished works are
not distributed to the public by sale or other transfer of ownership, rental,
lease, or lending. Although unpublished works are protected from the moment of
their creation, the amended § 107 includes the necessity of a fair use analysis
in the copying of unpublished as well as published works. Therefore, before
photocopying unpublished works, teachers must either obtain permission or
perform a fair use analysis. Based on the case law preceding the amendment of
section 107, a teacher should be cautious in photocopying unpublished works
because it is difficult to ascertain its potential market, and this is a
critical factor in a fair use analysis.
TWO: IS USE WITHIN THE GUIDELINES?
If a work is copyrighted or presumed to be copyrighted, the
next step for a teacher is to determine whether it is within the boundaries of
the Guidelines. The Guidelines were promulgated as an unofficial compromise
between publishers and educational associations. The Guidelines are not the law
and do not set any limits on the teacher's right to copy under fair use. They
are, in fact, a "reasonable interpretation of the minimum standards of fair
use.” 6 As such, they
represent a safe harbor for educators who stay within their scope. Therefore, it
is worth determining whether an intended use of a copyrighted work is within the
boundaries of the Guidelines before embarking upon a more complex fair use
which is permitted under the Guidelines in not-for-profit educational
Single copies for teachers. Any of the following may be copied for
scholarly research or for classroom purposes, and the property becomes the
property of the user:
a chapter from a book, b. an article from a periodical or newspaper,
a short story, short essay, or short poem whether or not from a collective work,
a chart, graph, diagram, drawing, cartoon or picture from a book, periodical or
Multiple copies for classroom use. A teacher may make multiple copies for
a one-time distribution in a class to students when:
no more than one copy for each student is made,
a notice of copyright is written on the first sheet, or a copy of the page on
which the copyright appears is attached,
copied material amounts to only a small proportion of the original work,
selections of poetry, prose or illustrations are sparing (poems of no more than
250 words, prose if the complete article is less than 2500 words, or an excerpt
not to exceed 1000 words or 10% of the work, whichever is less),
the copying is at the instance and inspiration of the individual teacher,
the decision to use the work and its use are so close in time that it would be
unreasonable to expect a timely reply to a request for permission,
the copying is for only one course in the school,
there is no more than one poem, article or essay or two excerpts are copied from
the same author, and no more than three excerpts from the same collective work
or periodical volume during one class term, there are no more than nine
instances of such multiple copying for one course during one term, and J. the
same material is not repeatedly copied.
While it is useful to
determine whether material intended for use is within the Guidelines, the
quantity and frequency limitations are seldom met. For instance, the requirement
that the same material may not be repeatedly copied means that use within the
Guidelines for one semester may be outside the Guidelines if the teacher chooses
to use the same material the following semester. If the material intended for
use is beyond the scope of the Guidelines' safe harbor, then the teacher must go
to the next step in the analysis.
THREE: IS USE FAIR?
works which faculty members want to photocopy for classroom use are copyrighted.
Most required uses of photocopied material will not meet the tests of brevity,
spontaneity, and cumulative effect of the Guidelines. The teacher is then faced
with four options:
The first option is
unacceptable if a teacher considers material to be relevant and important for
his students. The purpose of the copyright law is to promote the dissemination
of creative works to the public, not to deter this dissemination. 7 The primary goal of copyright law is to promote progress and
the public interest. Education is the "paramount public interest" and
the most important means of promoting progress.8
The legislative history of the Copyright Act clearly supports this
interest in education.
The second option is
unreasonable if only a portion of a work is to be used. Students cannot afford
to purchase libraries of works in order to utilize parts of each work. The
unreasonableness of such a proposition seems to be a major consideration in the
creation and codification of the fair use doctrine.
The third option is a
valid consideration; permission may, in many cases, be the best alternative.
This option, however, should be utilized only after the fourth option, a fair
use analysis, has proved unhelpful. If the doctrine of fair use applies to the
situation in question, permission is unnecessary. Fair use is a limitation on
the exclusive rights of copyright owners. It protects the primary goal of
copyright law, which is the promotion of progress and public interest.
A more practical reason for
undertaking a fair use analysis before seeking permission is that a request for
permission is a time-consuming process. If permission is denied or the
process is overly burdensome, then the teacher will have spent considerable time
and effort without obtaining the anticipated result. This consumption of time
could have been avoided had the teacher made an independent analysis first.
Therefore, the next appropriate step for a teacher to make is an analysis of
Fair use is a means of
balancing the interests of the public with those of the author. The limited
monopoly of copyright was viewed by Congress as the best incentive for the
production and dissemination of creative work to the public. However, rewarding
the copyright owner is a secondary consideration. 9
"The primary objective of copyright is not to reward the labor of
authors but “[t]o promote the Progress of Science and the useful Arts."
The courts accomplished
a compromise between society's interest in die use of a copyrighted work and the
author by means of the common law doctrine of fair use. This doctrine allowed a
copyrighted work to be used in a manner which served the public interest without
the necessity of obtaining the owner's consent.
Congress codified the judge-made
law of fair use in § 107 of the Copyright Act of 1976. It provides:
the provisions of § 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 or value of the copyrighted work
(emphasis added). 11
specifically identifies teaching, including multiple copies for classroom use,
as a potential fair use. In order to determine whether any particular use is
fair, the four mandatory factors must be considered. Fair use is determined by a
step-by-step evaluation of these factors by the educator. After each factor is
considered, the final decision of fair use should be based on the reasonable and
informed judgment of the teacher.
Factor One -- The
purpose and character of the use. This first
factor in the fair use analysis is paramount because it leads to presumptions.
If the use of a copyrighted work is for commercial purposes, then it is
presumptively an unfair use. On the other hand, if the use is for nonprofit
educational purposes, the use is presumed to be fair. These presumptions may,
however, be altered by the other factors.
The mere assertion of
nonprofit educational status is insufficient. The teacher and the institution he
works for must have no direct or indirect profit motive. At most accredited
schools and universities, the nonprofit educational purpose will be legitimate.
Another consideration is
that any charge for photocopied material must reflect only the actual cost of
photocopying. The use may be categorized as commercial if additional charges
above the actual cost of photocopying are levied. Additional charges could be
viewed as an encroachment on the traditional role of publishers and retailers.
addition to the commercial/nonprofit distinction, courts will consider a
productive/nonproductive analysis. To strengthen a presumption of fair use, it
is helpful to make a productive use of the photocopied work. The addition of
original commentary or questions by an educator may persuade a court to consider
a use productive. The court in Basic Books, Inc. v. Kinko's Graphics Corp.
noted that a professor's selection of articles for anthologies may be enough to
constitute a productive use. 12
Factor Two -- The nature of the copyrighted work. This factor focuses on
the type of copyrighted material copied rather than on the intended use. The use
or copying of factual, functional or nonfiction works is more likely to be
viewed as fair use than is the use of fictional works. The reason is that facts
contained in these types of works are considered to be important to the public.
A monopoly of factual information is not the purpose of the copyright law.
Copyright law is a means of encouraging original expression and dissemination of
such information to the public. One cannot monopolize an idea or fact by means
of the copyright law. Factual, functional, and nonfiction works contain less
originality than fictional works and utilize material which others should be
encouraged to build on or re‑interpret.
A finding that a work is factual is only one factor to be considered. Congress did not state what weight should be given to these individual factors. If a use is presumed fair due to the first factor, then a finding that the nature of the copyrighted work is factual adds weight to this presumption. If rebutted, further analysis is necessary.
Factor Three -- The
amount and substantiality of the portion used in relation to the copyrighted
work as a whole. The third factor focuses on
the amount of the copyrighted material used. The less of the work that is used,
the more likely that the use is fair.
However, amount is not
solely a quantitative assessment. The Supreme Court has found that a qualitative
assessment is similarly relevant when analyzing this factor. Using a small
portion of a work which represents the "heart" of the work may lead to
a conclusion that this factor weighs against fair use. 13
If the first two factors
lead to a presumption of fair use, this factor becomes less important. The
copying of entire works has been held to be within fair use, yet the copying of
entire works must also be reasonable. For example, even if the first two factors
favor fair use, the copying of an entire book may not be fair use. This is
particularly likely if the entire work is commercially available. On the other
hand, the copying of an entire article, a part of a greater whole, may be fair
use even if it is commercially available. Use of ail entire work for only one
semester is more likely to be considered fair use than is repeated use of that
work. Reasonable judgment and respect for an author's rights must be applied in
analyzing these factors and must be weighed with the necessity for the use.
Factor Four -- The
effect of the use upon the potential market for or value of the copyrighted
In Harper & Row Publishers, Inc. v. Nation Enterprises, the Supreme
Court found this factor to be the most important consideration. 14 The effect of
the photocopying on the market for the copyrighted material need not be actual.
All that is necessary is that the use will have a substantial effect on the
potential market for the copyrighted material.
The reason that this factor is
so important is that an author would be discouraged from writing for a market
that would not provide compensation. If the potential market for a particular
copyrighted material is the academic community, then the photocopying of this
work would deprive the author or copyright owner of intended income. This would
reduce the incentive to write or publish academic textbooks. If the intended
market is the general public, however, educational photocopying may have only a
minimal effect and this would not be enough to discourage the author.
The economic impact of copying
is an important consideration. The copying of an expensive work may be dangerous
because copying even a portion of it, which constitutes the heart of the work,
could have a substantial economic impact. This is particularly true if the
copying becomes widespread. Even though one instance of such copying by a
teacher may not be considered a substantial hardship, if many teachers copied
the work, the aggregate could have a significant impact on the potential market.
Teachers should be advised to use photocopied material as supplements to texts
rather than replacements for them. This type of use would have less of an effect
on the overall educational market.
If there are adequate incentives, other than financial, to the creation of
material, it may be more likely that use of the work will be considered fair. An
example of this would be the copying of scholarly articles. It could be argued
that the incentive for writing such articles is not money but instead
recognition, prestige, and scholarship. If so, the photocopying of such a work
would be unlikely to decrease the incentive to produce it. Yet, the publisher of
a scholarly journal should be considered. If the publisher is a for profit
business, photocopying may deter the publication of these journals. The economic
incentive of copyrights as a means of encouraging expression must always be
considered in a fair use analysis.
Additional Factor -- Good Faith.
Good faith is essential in any fair use defense. Photocopies of copyrighted
material must always bear notice of copyright; an author always deserves to be
credited for his work. Failure to include notice of copyright may destroy any
claim of fair use, even if all other factors are in favor of such use.
If material contains no
notice of copyright, notice of the identity of the author should be included on
the copies. This at least shows that the educator has considered the owner's
rights in the determination of fair use. Since there is no requirement of notice
of copyright by authors after March 1, 1989, simply providing credit to the
author and the date of the publication would put others on notice that a
copyright may exist.
additional element of good faith is involved in the repeated use of copyrighted
material. If specific material is to be used for more than one school term it
becomes harder to argue that it was necessary to copy without prior
authorization. Good faith requires that a teacher use fairness, reasonableness,
and common sense.
. Basic Books, Inc. v.
Kinko's Graphics Corp.,15 is
the most recent decision by a federal district court relevant to the issue of
educational photocopying. 16 In
this case, the plaintiffs, eight publishing companies, brought suit against
Kinko's alleging copyright infringement. Kinko's, a commercial photocopying
center, had copied excerpts from copyrighted books without permission and
compiled them into course packets which it then sold to students. Kinko's
claimed that this was fair use because it was acting as an agent of teachers.
The court rejected the claim of fair use and found copyright infringement. By
applying the fair use factors, the court concluded that Kinko's had infringed
the copyrights of the eight publishers. 17
The first factor was found to weigh against fair use. Kinko's had made
considerable profit from its photocopying for teachers and students. Even though
the copying was eventually used for nonprofit educational purposes, Kinko's use
of the material was not altruistic. Kinko's use was also found to be
unproductive because the copy center added nothing to the works and did not
select the articles used in the anthologies. As a result of this commercial and
unproductive use, the court found a presumption of unfair use.
Kinko's also argued that
it was an agent of a nonprofit educational institution and thus fell under the
exculpatory damage provisions. The court found, however, that Kinko's actively
solicited business from professors and boasted of its expertise in obtaining
copyright permissions. Kinko's was found to be an independent contractor rather
than an agent.
The second factor, the nature of the copyrighted works, weighed in favor of fair
use because all of the works copied were found to be factual.
The third factor, the amount and substantiality of the portion used, went
against Kinko's use. The portions copied were seen as critical parts of the
copyrighted books. Even though the quantitative amounts ranged from only five to
twenty‑eight percent, the qualitative amounts were held to be substantial.
final factor also weighed against Kinko's. Kinko's copied and sold nationwide
its packets at much cheaper prices than the originals because its costs were
lower than those of publishers. The purchase of the packets from Kinko's was
found to obviate the purchase of the copyrighted works.
Based on the analysis of the four fair use factors, the court found that Kinko's
use was unfair. The most important factor in this case, however, was Kinko's
commercial purpose. The court found that Kinko's did not play a nonprofit
educational role. Kinko's assistance to nonprofit educators was primarily for
The major Supreme Court cases addressing fair use are Harper & Row
Publishers, Inc. v. Nation Enterprises, 18
Salinger v. Random House, Inc., 19 and Sony Corp. of Am. v.
Universal City Studios, Inc. 20
Harper & Row
and Salinger were suits for the unauthorized use of unpublished works. In
both instances, there was a finding of copyright infringement. Since unpublished
works are given special protection by the courts, fair use generally will not
apply to unpublished works. 21
In Harper & Row,
the Nation magazine published portions of President Ford's biography prior to
publication of the book. As a result of the prepublication, Time magazine
canceled an agreement for the exclusive rights to print prepublication excerpts.
Thus, the purpose of the use, the first factor, weighed against Nation. Although
the use was to provide news, this article was used for commercial purposes.
The Court found the second factor to be a "critical element;" the
unpublished nature of the copyrighted work tended
to negate a defense of fair use. 22
The next factor, the amount
and substantiality of the portion used, was found to be insubstantial in
quantitative terms but substantial in qualitative terms. The Court stated that
Nation copied what was "essentially the heart of the book." 23
The fourth factor was
identified in Harper & Row as "the single most important element
of fair use.” 24 The cancellation of Time magazine's agreement was found to
present clear evidence of actual damage, which is more than that needed to prove
this factor. All that is necessary to negate fair use is that should the use
become widespread, "it would adversely affect the potential market for the
copyrighted work." 25
The Salinger case
involved a biographer's use of J.D. Salinger's unpublished letters. The
biography was clearly for commercial purposes. The unpublished nature of the
letters weighed against fair use. The amount used was only two hundred words,
but numerous passages closely paraphrased portions of the letters. The court
found that, based on these factors, there was no fair use.
Finally, Sony involved
a suit by a copyright owner of television programs against the manufacturer and
seller of home video tape recorders ("VTRs"). The question posed was
whether the sale of the VTRs to the public infringed the copyright owner's
exclusive rights. The Court answered this question by applying the four fair use
factors. The Court found that the use of VTRs was for noncommercial private home
use. The first factor therefore led to a presumption of fair use. The private
nature of the use was emphasized in the opinion. 26
of the nature of the copyrighted work revealed that the copyrighted programs
were initially available to theviewer entirely free of charge and that
videotaping these programs was merely a form of timeshifting .27 The Court
stressed the free nature of the works. The Court also found that copying served
an important service of providing VTR owners the ability to view educational,
religious, and sports broadcasts at a later time. Although the work at issue in
this case was entertainment, the Court was not willing to deprive the public of
the potential educational and informational uses of a VTR. Although the works
were copied in their entirety the Court held that this did not destroy a finding
of fair use. 28
The analysis of the final
factor explained that a noncommercial use of a copyrighted work requires proof
that "some meaningful likelihood of future happen exists" whereas with
commercial use of a copyrighted work that likelihood may be presumed. 29
In this case, the harm was held to be speculative and minimal.
These factual summaries
of important fair use decisions provide an example of how the courts analyze the
fair use factors. A much better understanding would result from reading some
actual decisions because a reasonable understanding of fair use involves
examining how the courts have dealt with various situations.
STEP FOUR: EVALUATE LIABILITY
Remedies available to a party
whose copyright has been infringed are statutory damages, actual damages, and
injunctive relief Statutory damages are penalties for infringement ranging from
$500 to $100,000. Actual damages are the amount of actual harm caused to the
copyright owner, including any profits made by the copyright infringer.
Injunctive relief is a court order requiring an end to present and future
If a teacher follows the analysis set out in this guide, a conclusion that
specific copying is fair use will probably be considered a reasonable belief
made in good faith. This is important because statutory damages are not
where an infringer believed and had reasonable grounds for believing that his or
her use of the copyrighted work was a fair use under section 107, if the
infringer was: (i) an employee or agent of a nonprofit educational institution,
library, or archives acting within the scope of his or her employment, or such
institution, library, or archives itself, which infringed by reproducing the
work in copies . . .. 30
Congress added this section to
provide teachers with greater certainty. As long as the teacher has reasonable
grounds for believing that a particular use is fair, no statutory damages will
be awarded to a copyright owner even if the use is found to be an infringement.
In these cases, the remaining potential for an injunction or actual damages
would probably not be great enough to cause a chilling effect on fair use by
When a particular use is
questionable, there is one factor which must be considered ‑ the cost of
defending a law suit. This potential cost is the greatest source of
administrative restrictiveness on the fair use policy. It is also the major flaw
in the congressional intent to provide teachers with greater certainty. The cost
of defending a copyright infringement suit is often great and causes a chilling
effect on fair use by educators.
When a teacher suspects
a particular use is questionable, it may be beneficial to obtain advice from an
experienced person within the school or from the attorney general's office if it
is a state school. When a particular use reaches the outer limits of fair use,
the general counsel or attorney general's office could become a final arbiter in
the decision of whether a claim of fair use is reasonable.
It is essential that
some procedure is implemented in every academic institution which will allow
teachers to responsibly utilize their right of fair use. When institutional
procedures are inadequate, universities expose themselves to liability and
court‑ordered restrictions. This has the effect of chilling reasonable
fair use by educators. On the other hand, when institutional procedures are
overly restrictive, educators are more apt to simply ignore or bypass a fair use
analysis. This undermines the protections afforded by the law and exposes
individual teachers to potential liability for willful infringement.
The implementation of
reasonable procedures would protect all of the interests involved, including
those of educators, students, academic institutions, copyright owners,
publishers, and the public. Academic policies and procedures which require
teachers to carefully balance these interests and responsibly determine whether
a particular use is fair are the best means of preventing liability and
achieving the goals of the congressional scheme of copyrights.
STEP FIVE: OBTAIN PERMISSION
If it is determined that fair use is not applicable to a particular use, two final options are available, The teacher can obtain permission to copy the material, or he may have a commercial copy center obtain permission and copy the material for him.
To obtain permission to copy,
it is necessary to determine who owns the copyright. This is sometimes difficult
since copyrights may be sold, transferred, licensed, and devised. The author or
the publisher may be contacted to determine who owns the copyright. If the
copyright is registered, the U.S. Copyright Office in the Library of Congress
may possess information on the ownership of the copyright, but finding this
information may be an extremely time-consuming process. 31
Once the educator
determines who owns the copyright, lie must provide the copyright owner with
specific information in order to obtain permission. 32
The Association of American Publishers has said that the following facts
are necessary in order to authorize duplication of copyrighted materials. These
title, author and/or editor, and edition of materials to be duplicated;
exact material to be used, giving amount, page numbers, chapters and, if
possible, a photocopy of the material;
number of copies to be made;
use to be made of the duplicated materials (and duration);
form of distribution (classroom, newsletter, etc.);
whether or not the material is to be sold; and
type of reprint (ditto, photography, offset, typeset).
The request should be sent
with a self‑addressed return envelope to the permissions department of the
publisher in question. 33 Permission
often takes considerable time, so lead time is necessary. It is also advisable
to follow up with a written request for permission or with a phone call to the
publications, permission may be obtained from the Copyright Clearance Center
("CCC").34 For those publications, the CCC grants permission and
collects fees for photocopying rights. If a publication is registered, this fact
will often appear near the notice of copyright in a publication. Libraries may
also have a list of which publications are registered.
a teacher does not have the time or the inclination to obtain permission
individually, commercial copy centers may perform this service for an additional
fee. As a result of the suit against Kinko's, for example, it is now Kinko's
standard operating procedure to obtain permission before photocopying
SIX: EVALUATE ACADEMIC STRUCTURE
The last part of this guide deals with the actual act of photocopying and distribution of photocopied material to students. If a teacher determines that a particular use is fair, the means of photocopying or distribution may have a dramatic impact on the final determination of fair use.
are five basic models which a school may use:
the individual teacher copies and distributes to the students;
the school copies at the request of the teacher and the teacher distributes to
the school copies and distributes to the students at the request of the teacher,
4. tile school copies at the request of the teacher and an outside source
distributes (e.g., a bookstore); and
an outside source copies and distributes (e.g., a commercial copy center).
In any of these situations, if there is no charge beyond the actual cost of photocopying, fair use will be unaffected. This is usually the case in the first three models. Teachers frequently hand out photocopies to their students without charging the students. This is probably the safest method of copying and distribution. Similarly, school reprographic departments often make photocopies, within certain limits, at the request of teachers and then give these copies to the teachers to distribute free of charge. This too would not affect the fair use analysis.
In the third model, the
copying and distribution by the school is usually either free to the students or
the students are charged the actual cost of photocopying. This would not affect
the fair use analysis.
An effect on the fair use
analysis occurs when additional cost is added to the cost of photocopying in the
form of profit. These additional costs are most common in the last two models.
When a school copies and has an outside source distribute the materials, the
outside source is usually a commercial operation such as a bookstore. A
commercial business will usually find it necessary to add a surcharge to the
actual cost of photocopying. The addition of a profit motive in the distribution
process may change the character or nature of the use (the first fair use
factor) from nonprofit to commercial. Thus, the presumption would arise that the
use is unfair. This is a dangerous situation for a school because it changes the
entire fair use analysis. Therefore, teachers must consider the process within
which the school operates. Teachers and administrators would be wise to avoid
situations where additional charges are added to photocopied materials.
The fourth model also
may include two variations. The outside distributor may be an independent
operation, such as a neighborhood bookstore. Under agency law, this type of
distributor would probably be viewed as an independent contractor. An
independent contractor would be responsible for its own actions, and thus any
charges added by this type of distributor would place the book store in a
position of potential liability.
If, on the other hand,
the outside distributor is associated with the school, it may be viewed as an
agent of the nonprofit educational institution. An agent of a nonprofit
educational institution would not be liable for statutory damages if a teacher
had a reasonable belief in fair use.
These subtleties in the
relationship of the outside agency to the school are important if an
infringement action was brought against a particular use, but one conclusion is
certain. Any addition of a profit motive in the fair use chain of events may
alter the character of the use. This change in the character or purpose of the
use may ultimately defeat any claim of fair use.
The final model is also
dangerous because commercial copy centers are in the photocopying business for
profit. Profit is built into the actual cost of photocopying as it is with any
commercial business. In light of the Kinko's decision, fair use is unlikely if
the copy center photocopies and distributes to the students directly.
members should familiarize themselves with the analysis contained within this
guide. Once these concepts are understood, a teacher will be able to quickly
utilize these steps to independently determine how photocopying for classroom
use may be achieved. The rights of the author and the publisher should always be
considered when photocopying copyrighted material. These rights, however, must
be balanced with the public's interest in education. An informed and reasonable
determination of fairness by teachers will best achieve the ends of the
use is an essential tool to be used by teachers to promote the public interest
in access to necessary information for students. Educators have an important
responsibility to protect the integrity of fair use and the primary purpose of
the copyright law. If educators do not fulfill this vital role by understanding
and utilizing their privilege of fair use, the statutory benefit will be lost.
request permission to photocopy copyrighted material, it is necessary to inform
the copyright owner of certain information within the request. The following is
a sample letter to an author or publisher requesting permission to copy:
Department Any Book Company 601 West 113th Street New York, N.Y. 10025
would like permission to photocopy the following material for use in my class,
"Advanced Intellectual Property," next semester:
Trademark Practice, Second Edition
Any Book Co., 1989, 1992
to be duplicated: Pages 21‑39
of reprint: Photocopies (sample enclosed)
of copies to be distributed: 35
The copies will be distributed only to students registered for the course listed
above. The students will pay only the cost of the photocopying (or, there will
be no charge to the students).
These pages will be used as a supplement to the required textbook.
have enclosed a self‑addressed, stamped envelope for your convenience in
replying to this request.