Copyright Restrictions
and the Fair Use Doctrine

Nearly every form of work commonly used in a classroom--books, periodicals, essays, monographs, music, videos, photographs, and more--is subject to copyright protection. A copyright doesn't protect the work itself; rather, it protects the rights that belong to whoever controls the copyright in that work.

The holder of a copyright in a particular work has the exclusive right to determine who may reproduce all or part of the work, distribute copies of it, prepare derivative versions of it, and perform or display the work.

The law gives a copyright holder permission to enforce against unauthorized reproduction or distribution of the copyrighted work. This affords the copyright holder the right to sue--and collect monetary damages from--a person or institution that violates the copyright. Lawsuits by authors and publishers against individuals--and even educational institutions--over copyright violations are not uncommon.

What is fair use?

In the United States, copyright protection is provided most prominently by the Copyright Act of 1976. Under that federal statute, an author's original tangible expressions are protected for the author's life plus 50 years.

While the law generally gives exclusive right of reproducing the work to the copyright holder, Congress has provided an exception to this restriction: the Fair Use Doctrine, which allows limited circumstances under which a copyrighted work may be reproduced without the copyright holder's express permission.

Under the Fair Use Doctrine, four factors must be considered when
determining whether or not a copyrighted work may be reproduced without permission from the copyright holder:

1. The purpose and character of the use, including whether the use is of a commercial nature or for nonprofit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion to be reproduced in relation to the work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.

Teachers often point to the Fair Use Doctrine as authority for reproducing a copyrighted work. Contrary to this popular misconception, however, is the fact that a work used for educational purposes does not automatically justify its wholesale reproduction to the degree that the copyright is infringed.

The Fair Use Doctrine's four-step test presents a trait found in many acts of Congress in that it is somewhat vague. In an effort to cure the vagueness, a consortium comprised of the Ad Hoc Committee on Copyright Law Revision, the Authors League of America and the Association of American Publishers, Inc. in 1976 issued guidelines for classroom copying of books and periodicals.

The guidelines provide conditions allowing an instructor to copy without permission any of the following for scholarly research, or for use in teaching--or preparing to teach--a class; a chapter from a book; an article from a periodical or newspaper; a short story, short essay or short poem, whether or not from a collective work; and a chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

An instructor may--without first obtaining permission from the copyright holder--make multiple copies (not to exceed more than one copy per pupil in a course) for classroom use or discussion, only, however, if the copying meets the guidelines' tests of brevity, spontaneity and cumulative effect, and that each copy include a notice of copyright.

What are brevity, spontaneity and cumulative effect?

A work of poetry meets the brevity test, for example, if it is a complete poem, fewer than 250 words in length, and printed on no more than two pages. An excerpt from a longer poem meets the test if the excerpt is of no more than 250 words.

A work of prose meets the brevity test if it is either a complete article, story or essay of fewer than 2,500 words; or an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less. An illustration meets the brevity test if it consists of one chart, graph, diagram, cartoon or picture per book or periodical issue.

The brevity guidelines contain an inclusive category termed special works. These are works of poetry, prose or "poetic prose" which often combine language with illustrations, are intended sometimes for children (and at other times a more general audience) and fall short of 2,500 words. Special works may not be reproduced in their entirety; however, an excerpt comprised of no more than two of the published pages of a special work, and containing not more than 10% of the words found in the entire text thereof, may be reproduced.

A work passes the spontaneity test if it meets two conditions: the copying is at the instance and inspiration of the individual instructor, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission to copy.

Finally, for material to meet the cumulative effect test, the copying of the material must be for only one course in the school where the copies are made; and not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during one class term. Cumulative effect prohibits more than nine instances of such multiple copying for one course during a class term.

The guidelines outlaw unauthorized copying for the purpose of creating, replacing, or substituting for anthologies, compilations or collective works. Also prohibited is unauthorized copying of works intended to be "consumable" in the course of study or teaching, such as workbooks, exercises, standardized tests and test booklets and answer sheets.

Under the guidelines, unauthorized copying may not be substituted for the purchase or books, publishers' reprints or periodicals, or be repeated with respect to the same item by the same teacher from term to term. Finally, the students may not be required to pay an amount greater than the cost of the copying.

Can permission be obtained?

As viable as the fair use doctrine is, its usefulness as justification for reproducing a copyrighted work is diminished if one is hard-pressed to claim brevity, spontaneity and cumulative effect in an unauthorized copying enterprise. Since Fair Use can be an exercise in guesswork, securing permission of the copyright holder before copying all or part of a work is a good idea.

Most large publishers have permissions departments whose staff routinely consider requests to reproduce their copyrighted publications. (Frequently, such publishers include the mailing addresses of their permissions departments on the publication--data pages of their books, or even on their websites.) Many educators find publishers exceptionally willing to authorize reproduction of their copyrighted works, especially for academic purposes.

Moreover, Follett College Stores, Inc. (which manages the bookstores of the Maricopa Community Colleges) provides course pack and custom publishing services for most of those colleges. This includes "obtaining and maintaining documentation of all copyright approvals and payments."