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