Sara B. Metcalfe
ILS599-Copyright
Law and Libraries
Situation 2. A librarian at a nearby college emails you
about the concerns of a professor at her school. This professor is a "Core
Curriculum Coordinator", which means that he is organizing several
professors to teach a new course. This course doesn't have a text because it
brings together several disciplines to give the students a new perspective on
some older topics and how they are inter-related.
Because there is no text and because some of the books
from the various disciplines are out of print, the coordinating professor has
been photocopying chapters from several different books and distributing two
copies each to the other professors. When questioned on the copyright issues,
he went to the library to get advice.
The professor, says the librarian who emailed you, is
ready to do the right thing. However, he is surprised about anyone questioning
the copying because he is sure that fair use allows it. What he is really
seeking is concurrence from the librarian.
She is not sure; that's why she's turned to you.
Email that librarian with your best advice.
Dear Librarian,
Fair use is a very tricky subject. The fair use provision of the Copyright Act allows reproduction and other uses of copyrighted works under certain conditions for purposes such as teaching (including multiple copies for classroom use), scholarship or research. There are four factors we need to take in to consideration when determining whether the material to be copied falls in the fair use guidelines. These guidelines (17 U.S.C. §107) can be found at:
http://www.loc.gov/copyright/title17/circ92.html#107
1. Character (What is the purpose of the material being copied: educational, commercial, criticism?)
2. Nature (Is the material to be copied fact or fiction? Published or unpublished?)
3. Amount (What percentage of the work is being copied)
4. Effect (What effect will the copying of this work have on the market?)
Obviously, the materials the professor needs are for nonprofit educational use (I am assuming he/she is not charging for the copies), and are only for the students enrolled in the course.
It is often hard to justify fair use when the materials are fictitious, or are based around the authors original opinions. If the materials are based on fact, the faculty member stands a better chance of
Amount is difficult to justify, as there are really no definite quantifiers. However, The Association of American Publishers and The Author's League of America developed some quantitative guidelines, which you can read from this link. You may also want to pass this URL along to the faculty member for his/her information.
http://www.publishers.org/home/abouta/highered/pguide.htm
The document basically states that a faculty member may make a single copy of the following (for educational uses only):
a. One chapter from a book.
b. One article from a periodical or newspaper.
c. One short story, short essay or short poem, whether or not from a collective work.
d. One chart graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.
However, 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. The document goes on to limit the total number of items that may be photocopied for each individual course per semester to nine items. The copying of these nine items is for “only one course in the school in which the copies are made”. Although there are multiple faculty members teaching the course, it is only one course.
Using those same quantitative guidelines, a faculty member may also make multiple copies for his/her students. The number of copies the faculty member makes may not exceed the number of students in the class. The multiple copies must also follow the rules described below:
a. The copying meets the tests of brevity and spontaneity
b. Meets the cumulative effect test as defined below
c. Each copy includes a notice of copyright
Brevity:
i. Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or (b) from a longer poem, an excerpt of not more than 250 words.
ii. Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words. (Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
iii. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
iv. "Special" works: Certain works in poetry, prose, or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "i" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof may be reproduced.
Spontaneity:
i. The copying is at the instance and inspiration of the individual teacher; and
ii. 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.
This is the toughest factor to justify. Again, I am assuming that the professor is not charging for the copies. In our case, some of the materials the professor wants to copy are out of print. Of course this means that it will not affect the monetary gain of the copyright holder. For materials that are still in print, the guidelines for amount that were drafted by The Association of American Publishers and The Author's League of America should be followed.
To be safe, my advice to the professor is as follows:
There are two ways to deal with copies for the students.
1. If the faculty member is able to make multiple copies for students without having to charge them for the copies, he/she should do so. They should make only enough copies for the students enrolled in the class.
2. If the faculty member is unable to make multiple copies for all of his/her students, have the materials put on reserve in the library. This means that the professor doesn’t have to endure the cost of photocopying materials for all of the students, and risk running into a sticky situation with having to charge the students for the copies. This makes the students responsible for the charges associated with copying the materials.
As for the other professors
A copy of the copyright page should also be included with each item copied.
For more information, you may want to look at this Fair Use Checklist, prepared by the Indiana University Copyright Management Center
http://www.iupui.edu/~copyinfo/fuchecklist.html