Use of Copyrighted Materials
in Academia

Persons or entities who own copyrights are granted specific rights under copyright law regarding their works. This law allows the owners of a work's copyright exclusive right to--and sole discretion to determine who may--reproduce all or part of the work, distribute copies of the work, prepare new (derivative) versions based on the original work, and perform and display the work publicly.

Published and unpublished works are covered under copyright protection. Some of the various types of works covered are those which are literary, dramatic or musical, as well as motion pictures, videos, computer programs and databases.

The changing learning environment, which more often encompasses the use of new technology in the classroom, has created even greater concern for the awareness of issues related to the authority to reproduce another's work.

US Copyright Law

Under the Copyright Act of 1976, an authors original tangible expressions are protected for the authors life plus fifty years. While the law for the most part gives exclusive rights of reproduction to an author, Congress has provided an exception to this provision. Referred to as the Doctrine of Fair Use, this provision prescribes limited circumstances under which works may be reproduced without the owners permission. Reproducing multiple copies of print materials in a classroom setting is the most common situation faced by faculty where the "fair use" concept may be applicable.

Section 107 of the Copyright Act sets forth four factors which need to be considered to determine if copying without the copyright owners consent is permissible. They are:

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

Courts have determined that these factors should be weighed together; no one factor determines a persons right to reproduce a copyrighted work. Educational use alone does not justify copying a work without permission.

In order to provide a minimum standard for not-for-profit educational institutions to exercise fair use under Section 107, 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 with respect to books and periodicals.

Guidelines for Classroom Copying

The guidelines provide that a teacher may copy any of the following for his or her scholarly research or use in teaching or preparation 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.

A teacher 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, provided that the copying meet the guidelines tests of "brevity," "spontaneity" and "cumulative effect" and that each copy include a notice of copyright.

Whether material meets the brevity test depends on the type of work one wishes to copy. 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 not more than two pages. An excerpt from a longer poem meets the test if the excerpt is of no more than 250 words.

On the other hand, 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 test if it consists of one chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

The brevity guidelines include an inclusive category termed "special works." These are defined as certain 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 in their entirety. 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.

Spontaneity and Cumulative Effect

A work one wishes to reproduce without permission passes the "spontaneity" test if it meets two conditions: the copying is at the instance and inspiration of the individual teacher, 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 one class term.

The guidelines prohibit unauthorized copying for the purpose of creating, replacing, or substituting for anthologies, compilations or collective works. Also outlawed is unauthorized copying of works intended to be "consumable" in the course of study or teaching, including workbooks, exercises, standardized tests and test booklets and answer sheets. Under the guidelines, unauthorized copying may not substitute for the purchase of books, publishers reprints or periodicals, or be repeated with respect to the same item by the same teacher from term to term. Finally, no charge shall be made to the student beyond the actual cost of the copying.

Relevant Court Cases

The Fair Use factors have been tested in several notable court cases involving educational institutions. In a 1989 case, which has been termed the "Kinkos Case," a federal appeals court held that Kinkos Graphics Corporation had violated the publishers copyrights in its practice of photocopying (without authorization) multiple pages from various works to create anthologies and for selling those anthologies for profit. Kinkos was found liable for copyright infringement, and the eight book publishers whose copyrights Kinkos had violated were awarded damages totaling almost $2 million.

In 1992, in a suit filed by Princeton University Press, Macmillan, Inc., and St. Martins Press, Inc., a federal tribunal prohibited a copyshop, Michigan Document Services, from making coursepacks of their works without their permission. A federal appeals court, however, later overturned that ruling and agreed with the defendant that the course packs were a "fair use" as defined in the Copyright Act of 1976.

The holdings from the "Kinkos" and "Michigan Document Services"
cases issue from two different circuits of the US Court of Appeals, and might appear to be contradictory. As the issue of copyright can be hazy, a good practice to follow is to either closely adhere to the Ad Hoc Committees guidelines or request permission from the copyright holder. Although giving the author credit can protect against plagiarism, it does not absolve a person or entity from copyright infringement.

Published in the Fall 1996 Edition of In Brief