# The Librarian's Copyright Companion/Chapter 4

Chapter Four
Fair Use (Section 107)
Copyright owners’ rights are important, but Congress did not put copyrighted works in a lockbox. A copyright owner does not have an absolute monopoly over the use of his or her work; owners’ rights are subject to other provisions of the Copyright Act that permit certain uses of copyrighted works. For those who work in libraries or schools, the most important of these rights are fair use (section 107 of the Act), the library exemption (section 108), the first sale doctrine (section 109), and the public performance exemptions (section 110).
Section 107 provides the broadest scope of protection for those who use copyrighted works. Unlike other sections of the Act that permit certain types of uses, or the use of certain types of materials, section 107 is an all-purpose exemption. Every use should be viewed under the section 107 microscope; when you try to determine whether a use is permitted under other exemptions, also consider whether it is a fair use. And remember that when a use is allowed under section 107 or another exemption, you need not receive permission from the copyright owner nor pay royalties.
Most scholars trace the origin of fair use in the United States to an 1841 case, Folsom v. Marsh. Jared Sparks, who had been assigned copyright in the letters of George Washington, edited them into a twelve-volume set. The Reverend Charles Upham used more than 300 pages from Sparks’ set in his own 866-page biography of Washington. To determine whether Reverend Upham infringed, Justice Joseph Story decreed that the ​court had to look at three things: (1) the nature and objects of the selection, (2) the quantity and value of the materials used, and (3) the degree in which the use may prejudice the work, diminish the author’s profits, or supersede the objects of the original work. After examining these factors, Justice Story concluded that Upham’s use was not fair.
Fair use remained exclusively within the judiciary until Congress codified it in the 1976 Copyright Act. Congress understood the complexity of legislating fair use; the legislative history notes that Congress intended to restate the fair use doctrine as it had developed in the courts, not to change, narrow, or enlarge it. Recognizing the difficulty in defining fair use, the House Judiciary Committee wrote
Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.
Fair use, then, is an equitable concept that attempts to balance the rights of copyright owners with the needs of those who use copyrighted works. The courts ultimately determine which uses are “fair uses.” American jurisprudence is guided by precedent, and a court deciding a case today will look at earlier decisions involving similar facts and issues for guidance. But because fair use determinations are fact-specific, it is difficult to generalize what is, and what is not, fair. A federal appellate court wrote in 1939 that “the issue of fair use … is the most troublesome in the whole law of copyright.” That is no less true today. The Judiciary Committee noted the freedom courts have in deciding whether a particular use 1s fair. It wrote
4.1. Section 107 Fair Use Purposes
* Criticism
* Comment
* News reporting
* Teaching (including multiple classroom copies)
* Scholarship
* Research
* Other possible uses
Let’s move to the Act. Section 107 begins with the statement that the fair use of a copyrighted work, including reproduction for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement. The Supreme Court has written that this list is not intended to be exhaustive, nor intended to single out any particular use as presumptively “fair.” And although the uses noted in the preamble are favored, you will see that not all copying done for such purposes is necessarily fair.
The Four Factors
Under the statute, a court deciding whether a use of a copyrighted work is a “fair use” must consider no less than four factors. Section 107 provides that:
(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 substantially of the portion used in relation to the copyrighted work as a whole; and
4.2. Section 107 Fair Use Factors
* Purpose and character of the use
* Nature of the copyrighted work
* Amount and substantiality
* Effect on potential market or value
The first factor examines two different things—the purpose of the use, and the character of the use. With regard to purpose, a court will consider whether the use is of a commercial nature or, instead, for non-profit educational purposes. Although non-profit educational uses are favored over commercial uses, this means neither that all non-profit educational uses are fair, nor that all commercial uses are infringing. For example, a court has held that extensive copying of PBS programs by a public school system for distribution to schools within the system—an obvious educational use—was infringing. Another court ruled that it was not a fair use when a teacher copied eleven pages from a thirty-five-page copyrighted booklet on cake decorating, and incorporated those eleven pages into a twenty-four-page booklet she prepared for her class.
The second part of the first factor requires an examination of the character of the use, including whether the use is transformative. The character/transformative issue was discussed at great length in Campbell v. Acuff-Rose Music, where the U.S. Supreme Court found that the band 2 Live Crew’s parody of Roy Orbison’s “Oh Pretty Woman” was a fair use. The Court wrote that the central purpose of the first factor is whether ​the new work merely supplants the original—a non-transformative use—or instead
adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” … [T]he more transformative the new work, the less the significance of the other factors, like commercialism, that may weigh against a finding of fair use.”
The concept of transforming a work was explored in great detail by a federal appeals court in American Geophysical Union v. Texaco, which is discussed below.
The second fair use factor is the nature of the work copied. Because the purpose of copyright is to “promote the progress of science and the useful arts,” there is more freedom to copy or otherwise use informational, scientific, or factual works than there is for creative or expressive works. For example, articles on the First Amendment, Google, and the Middle East may be more freely copied than a short story from the New Yorker or a Charles Schultz comic strip. This does not mean that a person may copy a “favored” work anytime he or she wants, nor that someone may never copy a Peanuts comic strip. A fair use analysis requires examination of all four factors, and sometimes others.
For example, courts often consider whether the work is published, unpublished, or out of print. In 1987, a federal appeals court ruled that a biographer of J.D. Salinger could not include Salinger’s private letters because, even though they were deposited in the archives of several university libraries, they were unpublished. Following the Salinger decision, after several other courts also restricted copying from unpublished works, it became apparent that some tinkering with the fair use provision was necessary. Consequently, in 1992 Congress amended section 107 with the following, simple clause: “The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”
​Today, the fact that a work is out-of-print may work for, or against, fair use. That a work is out-of-print may work in favor of the copyright owner because royalties from copying are the only source of income from the work. In other situations, however, the fact that a work is out-of-print may actually work in favor of the user, particularly if the copyright owner has not set up a handy mechanism to collect royalties. Of course, if a work is available through print-on-demand, it is not out-of-print.
The third fair use factor considers the amount of the copyrighted work that was copied, performed, or otherwise used. As a general matter, the more that is copied, the less likely this factor will favor the user. But you must look beyond quantity. Courts may conclude that this factor favors the copyright owner even when a very small portion of a copyrighted work is used—less than 1%, in some cases—if what is used constitutes the heart of the work.
In Harper & Row v. Nation Enterprises, The Nation magazine scooped an article on the memoirs of President Gerald Ford that was to appear in Time magazine. Harper & Row, which was to publish a book on the Ford memoirs, negotiated a prepublication agreement with Time in which the magazine would excerpt 7,500 words from the book dealing with Ford’s account of his pardon of former President Nixon. Before the Time article appeared in print, someone provided The Nation with a copy of the ​Ford manuscript. A few weeks before the publication of the Time article, The Nation published a 2,250-word article that included about 300 copyrighted words (verbatim quotes, actually) from the as yet unpublished manuscript. With its article scooped, Time cancelled its agreement with Harper & Row, and Harper & Row sued The Nation. Although The Nation used less than 1% from the Harper & Row manuscript, Harper & Row won.
A court may consider not only the amount taken from the first work, but also how much of the new work includes material that was copied from the first one. In other words, if the author of a twenty-page article copies twelve pages from another person’s work, 60% of the new work (twelve of the twenty pages) really is someone else’s. Needless to say, “the more the merrier” does not bode well for defendants in such cases.
Because much library copying involves copying articles, it is important to understand that there are usually two levels of copyright protection for periodicals. First, the publisher holds a copyright in the entire periodical issue as a “collective work”, provided that the selection and arrangement of the contents meet the originality requirements for copyright protection.
Second, there is copyright in each individual article. Copyright in an article is held by its author, unless the author transfers the copyright to another person or entity. If you want to use an article, and that use is not permitted by section 107 or another provision of the Copyright Act, you will need permission from whoever holds copyright in the article. In most cases it probably is the author, but many journals require authors to transfer copyright in their articles to the publisher. If you are copying an entire issue of a periodical, you may need to secure permission from whoever holds copyright in the articles, as well as from whoever owns copyright in the issue as a whole.
Copying from newsletters is even more problematic, and copying entire issues of newsletters is particularly frowned upon. A library should not ​subscribe to only one copy of a newsletter and use it to make additional copies for others in the organization. Neither should an individual subscribe to a newsletter and make copies for his or her friends or professional colleagues. Several court decisions indicate the risk of making cover-to-cover copies of newsletters in both the for-profit and non-profit sectors.
In 1991, a Washington, D.C.-area law firm was sued for making multiple copies of a newsletter for several attorneys in the firm, even though there were discounts available for multiple subscriptions. The law firm reportedly paid a huge amount of money to settle the suit. A year later, another newsletter publisher succeeded in getting an injunction against a for-profit corporation that was making cover-to-cover copies for employees in its branch offices. And one year after that, a non-profit association was held to have infringed for doing the same thing. In 2004, in a more up-to-date twist to this scenario, a brokerage firm was held liable for nearly $20 million in damages for repeatedly forwarding an e-mail newsletter to its employees and posting it on its intranet.
For newsletters, do not make cover-to-cover copies (either paper or electronic), even if you work in a non-profit educational institution, unless you have an agreement with the publisher that allows you to do so. This does not mean that you cannot copy anything from a newsletter. Occasional, isolated copying of small portions—not a significant portion, and not regularly—might be considered fair use. Even an entire newsletter issue may occasionally be copied, within limited circumstances, under the section 108 library exemption. (See Chapter Five.) Finally, your license ​agreement may permit you to distribute electronic copies within your institution.
Fair Use in the For-Profit Sector: The Texaco Case and Beyond
Here we need to talk about Texaco, a case coordinated by the Association of American Publishers in the name of five publishers. In 1992, a federal district court in New York held that Texaco’s routing of journals to researchers within the corporation, who subsequently photocopied articles and filed them away for later use, was not a fair use. Two years later the U.S. Court of Appeals for the Second Circuit upheld the lower court decision.
Although Texaco employed hundreds of scientists, before trial the parties agreed that the trial would focus on the activities of one, Dr. Donald H. Chickering, who photocopied eight articles from the Journal of Catalysis and placed them in his personal filing cabinet. Let’s see how the trial and appellate courts addressed the main issue in Texaco: Was the routing of journals to corporate scientists, who copied articles and filed them away for possible later use, a fair use under section 107 of the Act?
The trial court judge spent considerable time examining the first factor—the purpose and character of the use. As for the purpose of the use, the judge wrote that because the defendant was a for-profit company, its copying was “commercial.” As for the character of the use, the judge was struck by the fact that Dr. Chickering did not transform the copyrighted articles in any way. Chickering copied the articles and filed them away for possible later use, but there was no evidence that he ever used the articles in his research.
The appeals court had to decide if Dr. Chickering’s copying was, as the district court concluded, commercial copying. Noting that Texaco did not directly profit from the copying, the court concluded that the purpose was neither “for-profit” nor “non-profit educational,” calling it instead an “intermediate” use. The appeals court also pointedly called into question ​the library’s systematically routing journals to Texaco scientists so that each person could build a mini-library of photocopied articles. It called this
   “archival”—i.e., done for the primary purpose of providing numerous Texaco scientists each with his or her own copy of each article without Texaco having to purchase another additional journal subscriptions. The photocopying “merely supersede[s] the objects of the original creation” [quoting Campbell and Folsom v. Marsh] and tilts the first fair use factor against Texaco.
Weighing its words carefully, the court continued
   We do not mean to suggest that no instance of archival copying would be fair use, but the first factor tilts against Texaco in this case because the making of copies to be placed on the shelf in Chickering’s office is part of a systematic process of encouraging employee researchers to copy articles so as to multiply available copies while avoiding payment.
As for the character of the use, the appeals court agreed with the district court that the copying was not transformative. Chickering had merely made copies. As the court explained, the transformative use concept is important when considering the character of the use, because a transformative use creates something new, thereby contributing to copyright’s goal of promoting the arts and sciences.
The second fair use factor, you will recall, examines the nature of the work copied. Both the district and appeals courts characterized the articles in the Journal of Catalysis as factual in nature, and concluded that the second factor favored Texaco. As for the third factor—the amount ​used—both courts concluded that it favored the plaintiffs because entire articles were being copied.
On to the fourth factor, the effect of the use upon the potential market for or value of the copyrighted work. Courts are more likely to find an infringement when the copyright owner incurs financial harm due to unauthorized or uncompensated copying. In 1985, the Supreme Court called the fourth factor the most important element of fair use. But since the 1994 Campbell decision, as the appeals court noted, the fourth factor no longer is more important than the others.
In assessing how copying affects the potential market or value of a work, courts will consider markets beyond journal subscriptions and book sales, such as the secondary market for article and book chapter reprints, and royalty or licensing fees. Furthermore, not only will a court examine the market impact of the individual defendant’s copying, but also “whether unrestricted and widespread conduct of the sort engaged in by the defendant … would result in a substantially adverse impact on the potential market for the original.” In other words, what would be the impact if a lot of other people do what this particular defendant did?
Both the district and appellate courts in Texaco noted that the publishers lost sales of additional journal subscriptions, back issues and back volumes, and also licensing revenue and fees. Like the district court, the appeals court also thought it significant that the publishers of the journals from which articles were copied were registered with the Copyright Clearance Center, thereby making it easy to pay royalties. Both the trial court and the appeals court found that the fourth factor favored the publishers.
​As Texaco lost the first, third, and fourth factors, the appeals court upheld the lower court decision and found that Texaco had infringed. But you should not conclude from the Texaco decision that a corporate library or any library in a for-profit organization can never copy journal articles for researchers; the court did not say that all copying in for-profit companies is infringing. Indeed, the court limited its ruling “to the institutional, systematic, archival multiplication of copies revealed by the record—the precise copying that the parties stipulated should be the basis for the District Court’s decision now on appeal and for which licenses are in fact available.”
Remember that fair use is an equitable concept; whether a use is or is not fair depends on the particular facts of each case. A company that fails to purchase as many subscriptions or licenses as it needs and uses large-scale copying or distribution—either by the library or by employees—as a substitute for subscriptions risks liability as an infringer. This is true not only in for-profit corporations such as Texaco, but even for non-profit educational institutions. The lesson from Texaco is not that fair use doesn’t exist in the corporate sector, but instead that there are limits as to what libraries and employees of an organization may do.
Let’s take a closer look at fair use in the for-profit sector. We need to recognize first that there are different types of for-profit entities, and that they are not all created equal under copyright law. Two of the earliest infringement lawsuits against corporations for internal copying were orchestrated by the Association of American Publishers in the early 1980s. Both resulted in out-of-court settlements. American Cyanamid, the defendant in the first suit, relinquished all fair use rights and agreed to make payments to the Copyright Clearance Center for internal copying. The other corporation, Squibb, also joined the CCC, but under its settlement did not have to pay royalties for a small amount (6%) of their copying that was considered fair use.
​As noted earlier, publishers sued several organizations in the 1990s for copying newsletters and won substantial settlements. And in 1999, LeBoeuf, Lamb, Greene & MacRae, a large New York-based law firm, purchased a multi-year photocopying license with the CCC and paid an undisclosed settlement to avoid an infringement suit brought by four publishers. Also noted earlier, in 2004 a brokerage firm was held liable for nearly $20 million in damages for copying an electronic newsletter.
Then we have litigation against the for-profit information brokers. In the early 1990s, the West Publishing Company, the largest U.S. legal publisher, sued several for-profit information brokers for infringement as a response to their copying and distributing the proprietary features in West’s court reporters. These cases resulted in victories for West, either through injunction or settlement.
We ought not to forget litigation against copyshops for producing coursepacks for college students. The first was a successful suit against the Gnomon Corporation, which operated several stores in the Northeast. In 1980 Gnomon entered into a consent decree enjoining the company from making multiple copies of journal articles and book chapters to produce coursepacks unless they had written permission from the copyright owners, or written certification from the faculty member that the copying complied with the Classroom Guidelines, which are part of the legislative history of the 1976 Copyright Act. A year later, Harper & Row brought a successful suit against Tyco Copy Service. Tyco settled the case on terms similar to the Gnomon settlement.
A case that received more publicity than either Gnomon or Tyco involved a lawsuit by Addison-Wesley Publishing against New York University, several members of its faculty, and a private copyshop for creating coursepacks. The parties settled, with NYU agreeing to inform its faculty ​members of NYU’s photocopying policies and to encourage them to comply with the Classroom Guidelines.
A few years later came the case with real staying power: Kinko’s, once found in every college town, was sued for copying articles and portions of books and compiling them into coursepacks. Kinko’s argued that the copying was educational because it was done for students at the request of their instructors. Unfortunately for Kinko’s, the court did not agree. Not only did the court describe the copying as non-educational and commercial, but it also criticized Kinko’s internal policies and procedures and its failure to educate and adequately supervise its employees, and held that Kinko’s was a willful infringer.
Michigan Document Services (MDS), an Ann Arbor copyshop, apparently failed to learn any lessons from the Kinko’s decision. In the MDS case, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit considered MDS’s copying “educational” and held that it was a fair use. But MDS’s happiness was short-lived. In an en banc decision (in which all the judges of a circuit sit together), the Sixth Circuit reversed the panel’s decision, holding that the copyshop’s systematic and premeditated copying for commercial motivation was infringing, noting also that MDS’s copying went beyond the Classroom Guidelines.
Litigation against copyshops did not end with the MDS case. The Copyright Clearance Center coordinated separate lawsuits in 2002 and 2003 against copyshops located near universities, with the earlier suit filed against Gainesville, Florida’s Custom Copies & Textbooks, and the latter against Los Angeles-based Westwood Copies. Both defendants settled. In 2005, ten major publishers sued copy shops in the Boston Area that ​were making coursepacks for college students; one of the lawsuits reportedly settled for $40,000.
On first blush, looking at all of these cases may give those who work in the private sector more shivers than actors performing Hair in Central Park in February. But remember that every fact counts in a fair use analysis, and no two cases are the same.
Take, for example, the status of the defendants. In the lawsuits against the pharmaceutical companies, the defendants were corporations that were not in the business of directly profiting from making copies. These lawsuits resulted in settlements, not in court decisions. By contrast, the other lawsuits targeted for-profit document delivery companies and for-profit copyshops which directly profit from making copies of copyrighted works. The latter group—companies whose business is making money from making copies—are on much thinner ice than pharmaceutical or oil companies or other businesses that do nor directly profit from copying copyrighted works.
So what should we make of Texaco? The court of appeals did not say that all copying in for-profit companies is infringing. The Association of American Publishers and the Copyright Clearance Center might believe—and they also may want librarians to believe—that all corporate copying requires permission or payment of royalties. But that is not what the court wrote, and it is not how fair use is applied. The appeals court noted that its decision was limited to the facts before it:
Our ruling does not consider photocopying for personal use by an individual. Our ruling is confined to the institutional, systematic, archival multiplication of copies revealed by the record—the precise copying that the parties stipulated should be the basis for the District Court’s decision now on appeal and for which licenses are in fact available.
The Bottom Line: If you have a situation identical to that in Texaco—(1) systematic and extensive routing of journals to corporate researchers; (2) who make copies of entire articles; (3) without even reading them or otherwise using them for any purpose: and (4) merely file them away for ​possible later use (archiving) such that the effect is to multiply the number of subscriptions without actually subscribing to the needed number of copies; and (5) if there is an easy way to pay royalties, such as through the CCC—then the copying is not a fair use. If you do not have this same factual situation, you should examine your facts under the fair use test. Texaco did not eliminate fair use in the commercial sector. Now let’s see how Texaco might play out in the non-profit educational sector.
Fair Use in the Educational Sector
In its decision in Texaco, the court of appeals wrote:
We do not deal with the question of copying by an individual, for personal use in research or otherwise (not for resale), recognizing that under the fair use doctrine or the de minimis doctrine, such a practice by an individual might well not constitute an infringement. In other words, our opinion does not decide the case that would arise if Chickering were a professor or an independent scientist engaged in copying and creating files for independent research, as opposed to being employed by an institution in the pursuit of his research on the institution’s behalf.
Does a professor act independently of her university when she writes a book or an article? Our answer is yes. Unless the professor was hired by the university to create a particular work under circumstances that would make it a “work made for hire,” or unless the university otherwise owns or shares copyright with the professor in the work (which, under university policies, is more likely when a professor or researcher uses significant university funding and other resources), we think that a professor does act independently of the university when she writes a book or an article. And as the court in Texaco wrote, its opinion did not address that issue.
​Would the court have reached a different conclusion if Dr. Chickering was a college professor rather than a researcher in a for-profit corporation? As noted above, the court took great pains to limit the Texaco decision to its facts. Libraries may continue to route journals to their faculty, and their faculty may copy individual articles. But there are limits. A court might very well decide against a university if the copying is systematic, extensive, and archival—if, for example, a university library routes issues to the dozen members of the economics department, and the faculty extensively copy articles from the issues for later use. The same would hold true if the university’s license to an e-journal permitted access to a small group of faculty researchers, but copies were made available to many others by electronic messaging. Here there could be both infringement and violation of the license agreement.
The Classroom Guidelines and the ALA Model Policy
4.3. Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions
For teachers
For students
* One copy
* Brevity and spontaneity limitations
* Cumulative effect not harmful,
But
House Report No. 94-1476
Section 107 of the Copyright Act provides that “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, ​teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement.” The Act itself sheds no more light on what is fair use in an educational setting. We do have some guidelines, however, courtesy of a 1976 agreement by the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, the Authors League of America, and the Association of American Publishers. The Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions was part of the 1976 Act’s legislative history. Here are its highlights:
(1) A single copy of a journal or newspaper article, a book chapter, or a drawing may be made by or for a teacher for research or to help teach or prepare to teach a class.
(2) A teacher may provide one copy of a copyrighted work to each pupil in his or her class (i.e., multiple copies) under the following conditions:
    A. Brevity: (1) a 2,500 word article, or, if article is greater than 2,500 words, a 1,000 word excerpt or 10%, whichever is less (but at least 500 words).
    B. Spontaneity: (1) The copying is made at the teacher’s insistence and inspiration (rather than being directed from above by a principal, department chair, or dean); and (2) There was no time to get permission from the copyright owner.
    C. Cumulative effect: (1) The copying is done for a single course (but multiple sections of the same course are okay); (2) No more than one article from a single author or three articles from a journal volume are copied during a class term; and (3) There are no more than nine instances of copying during a term, and the same materials are not copied from term to term.
    D. You cannot copy to create anthologies, compilations, or collective works (i.e., “coursepacks”).
We believe the Guidelines are overly restrictive. For example, a teacher may not copy for her students an entire article if it is longer than 2,500 words. Although the typical Newsweek or Time article will fit comfortably within the 2,500-word limit, that is not true for articles in scholarly journals.
​The American Association of University Professors and the Association of American Law Schools criticized the Guidelines “particularly with respect to multiple copying, as being too restrictive with respect to classroom situations at the university and graduate level” and would not endorse them. Acknowledging this criticism, the House Judiciary Committee noted that the “purpose of the … guidelines is to state the minimum and not the maximum standards of educational fair use,” and that “there may be instances in which copying which does not fall within the guidelines … may nonetheless be permitted under the criteria of fair use.”
You will note that the Guidelines do not permit the creation of coursepacks. As you read earlier, many courts agree, and so do we. When you create a coursepack that serves as the primary text for students in a class, get permission for each item that is protected by copyright, regardless of who does the copying—a for-profit copyshop, a non-profit university copy center, or a teacher. Coursepacks require permission. Period. If a teacher cannot get permission to include an article or book chapter in a coursepack, then leave it out.
4.4. ALA Model Policy (March 1982)
Single copy of a chapter or article for research or for reserve
Multiple copies
* Reasonable: amount of reading, number of students, timing…
* Notice of copyright
* No detrimental effect
Generally
* Less than six copies
* Not repetitive
* Not for profit
* Not for consumable works
* Not anthologized
Like the Classroom Guidelines, the ALA Model Policy provides that an instructor may, for scholarly research or use in teaching or preparing to teach a class, make a single copy of a chapter of a book; a journal or newspaper article; a short story, short essay, or short poem; or a chart, diagram, graph drawing, cartoon or picture.
With respect to copies for students, the Model Policy follows the Classroom Guidelines, permitting the distribution of a single copy to students in a class without permission so long as (a) the same material is not distributed every semester, (b) the material includes a copyright notice on the first page of the item, and (c) students are not assessed a fee beyond the actual cost of the copying.
After repeating the Classroom Guidelines’ brevity standards, the Model Policy notes that they are not realistic in a university setting and that faculty “should not feel hampered by these guidelines, although they should attempt a ‘selective and sparing’ use of photocopied, copyrighted material.” The Policy notes that copying should not have a significant detrimental impact on the market for copyrighted works, and, therefore, that instructors usually should restrict using an item to one course and not repeatedly copy excerpts from one journal or author without permission.
Copies for Librarians and Administrators
Some copying in the educational sector has no direct connection with teaching or scholarship. For example, if an academic librarian copies an excerpt about librarians using Twitter from Library Journal to share with her colleagues at a staff meeting, would she be protected by the fair use exception? Neither the Classroom Guidelines nor the ALA Model Policy ​addresses this situation, so we will use the four-factor test set forth in section 107.
Under the first factor, which considers the purpose and character of the use, the example described above appears to be neutral. Although the use is not directly connected to traditional fair use purposes such as teaching, criticism or scholarship, it is nonetheless a non-profit use that indirectly supports education. However, the character of the use is non-transformative, and thus not favored. The second factor, which involves the nature of the copyrighted work, also appears to be neutral. Library Journal isn’t as creative as the New Yorker, but it’s more than a mere factual report. Under the third factor, which depends on the amount copied in relation to the work as a whole, copying only a short excerpt from an issue of Library Journal would weigh in favor of fair use. Finally, the fourth factor, which considers the effect of the copying on the market for the work, seems to weigh in favor of fair use, assuming that the library already has a paid subscription and the copying doesn’t substitute for a need to purchase multiple subscriptions.
The Bottom Line: Copying of this sort is going to be a closer call than copying that has a more direct connection with educational or scholarly purposes, but it should still qualify as a fair use provided that the original copy is purchased by the institution and the amount of copying is modest.
Copies for Library Reserve and Course Web Sites
4.5. E-Reserves
* Legal copy
* Copyright (©) notice and credits
* Reasonable amount
* For teacher and enrolled students
* Non-repetitive
* Course/faculty name retrieval
Many instructors make copies of course materials available to students outside the classroom. When the ALA’s Model Policy was developed, this copying was done in paper format and placed on reserve in the library. Now ​it’s more likely to be done electronically and posted online, sometimes on a site controlled by the library (i.e., library e-reserves), but more often on a site controlled by the instructor or an IT staff member using course management software such as Blackboard. This change has shifted some of the responsibility for reserve away from libraries, but libraries will still face copyright questions when instructors ask for guidance or ask for electronic copies to post online.
We think that course Web sites and library e-reserves are not very different from paper reserves, and that the Model Policy can provide a framework for electronic copies. The Model Policy views library reserve as an extension of the classroom, and provides that at the request of a faculty member, a library may copy and place on reserve an entire article, a book chapter, or a poem. Some of the Model Policy’s guidelines apply equally in a print or online environment:
* The amount of material copied should be reasonable in relation to the total amount of reading assigned for the course;
* The material should include a notice of copyright;
* The effect of copying should not be detrimental to the market. To this end, the library should own an authorized copy of the work;
* Avoid repetitive copying: do not copy the same materials semester after semester;
* Do not copy consumable works (such as workbooks); and
* Do not create anthologies (including coursepacks).
We can also borrow some ideas from the Conference on Fair Use’s (CONFU) Fair-Use Guidelines for Electronic Reserve Systems, even though the conferees never reached consensus on them, and The Code of ​Best Practices in Fair Use for Academic and Research Libraries, developed by the Association of Research Libraries and American University. Although we mostly agree with the CONFU guidelines, we disagree with an introductory statement: “The complexities of the electronic environment, and the growing potential for implicating copyright infringements, raise the need for a fresh understanding of fair use.” Horse Feathers! Electronic reserve issues are not terribly complex, and do not require a fresh understanding of fair use. Although it is easy to send a digital copy to lots of people, that does not mean that an entire university community wants to receive—let alone read—the article Professor Quincy Wagstaff assigns to his Huxley College students. With appropriate controls you can minimize the risk of abuse. As an equitable concept, fair use is flexible enough to apply to nearly any type of situation and any type of format: that is its elegance.
A different perspective is offered by the Copyright Clearance Center’s Using Electronic Reserves: Guidelines and Best Practices for Copyright Compliance. The CCC advocates for copyright owners, so we can expect their guidelines to be more conservative. Although we agree with many of the CCC’s recommendations, we think there are a few that go too far in asserting the rights of copyright owners. Here are a few of the CCC guidelines with our comments:
    Comment: Yes, traditional copyright rules still apply when using digital technology, but the rest of this guideline is misleading. The lawsuits that publishers brought against off-campus copy centers selling coursepacks, which we discussed earlier in this chapter, involved facts patterns that are ​different from e-reserves: (i) the coursepacks were sold by the copy centers for a profit, whereas e-reserves are typically produced by non-profit institutions at no cost to the user; and (ii) coursepacks generally contain a large part of the reading for a course, while e-reserves are more likely to feature short pieces that make up only a small part of the assigned reading. While coursepacks almost always require permission from copyright owners, e-reserves can often use copyrighted material without permission as a fair use.
“First semester free.” The “first use is free” standard invoked by many libraries is not part of the Copyright Act or any subsequent rulings or agreed-upon guidelines. Any content posted in an e-reserve channel always requires copyright permission, unless it is covered by fair use, public domain, or other exception.
    Comment: The “first semester free” standard does come from agreed-upon guidelines, although it may be open to misinterpretation. The Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions, which was approved by a Congressional committee and is one of the most authoritative (and conservative) set of guidelines available, describes several factors to be considered in a fair use analysis, one of which is whether material is used only once (which supports a finding of fair use) or is used repeatedly. So you can sometimes use material for free the first time and pay for use thereafter. Of course, this doesn’t mean that you can always use material for free the first time. Frequency of use is just one factor in the analysis.
Get permission before posting. Unlike inter-library loans, you need to secure copyright permissions prior to posting content. Reposting of the same material for use in a subsequent semester requires a new permission.
    Comment: Again, the CCC sweeps with a wide broom, and sweeps fair use under the rug. The truth is that sometimes you need to obtain permission to post copyrighted content, and sometimes you don’t, depending on the facts of your situation. However, the CCC is correct in pointing out that reposting in a subsequent semester will require a new permission if you needed to get permission the first time.
Incorporating the “best of” the CONFU Guidelines, the CCC guidelines, the ALA Model Policy, and ARL’s Code of Best Practices, here are our suggested guidelines for posting online copies on course Web sites or library e-reserves without permission. At the outset, it’s important to understand that these guidelines only apply to copies of copyrighted material that you want to post online. If the material is already accessible online, whether ​on a free site or in a database your institution subscribes to, you should post a link to the material instead of posting a copy. By posting only a link, you avoid making a copy. You may post as many links as you like, and for any purpose. Also, there are no restrictions on posting copies of works in the public domain.
The Librarian’s Copyright Companion E-Reserve Guidelines
* At the request of an instructor, e-reserves may include entire articles, book chapters, or poems, but they should not include entire issues of a journal or an entire book.
* The amount of material on reserve for a course should be reasonable in relation to the total amount of reading assigned for the course.
* Preferably, materials should be posted on only one occasion, for a single course. But materials may be posted repeatedly if other factors weigh in favor of fair use.
* Access to e-reserve documents is limited to the instructors and to students registered in the particular course for which the materials are placed on reserve.
* Documents on reserve for a specific course should remain in the e-reserve system only during the semester in which the course is taught, but short-term access to e-reserve documents may be provided to students who have not completed the course.
* Simultaneous access to a particular document is limited to a maximum of five individuals.
* The introductory screen to the e-reserve system shall include the following notice:
    Warning: The E-Reserve Database Includes Copyrighted Works. The Making of a Copy May Be Subject to the United States Copyright Law (Title 17 United States Code). Do Not Further Distribute Copyrighted Works Included in This Database.
* If a copyright notice appears on the copy of the work, that notice should be included on the digital copy.
* Documents in the e-reserve system should include accurate copyright management information, including (but not necessarily limited to) the author, source, and date of publication.
* The instructor or the library should possess a lawfully made copy of any document placed on e-reserve.
* Students should not be charged a fee to access or use the e-reserve system. ​
* If possible, disable any download features and allow students only to view material without downloading.
We can see how a court interprets fair use in the context of e-reserves in a recent decision from a U.S. District Court in Georgia. A group of publishers sued Georgia State University officials over copyrighted material posted on Georgia State’s e-reserves. Instructors at Georgia State had posted the material for students to read, sometimes relying on fair use instead of obtaining permission. The publishers alleged that Georgia State’s policies on the use of copyrighted material were too lax and not properly enforced, and that the publishers’ copyrighted materials were infringed as a result. Because of sovereign immunity, the publishers did not seek damages, but sought an injunction ordering Georgia State to change its practices.
A few months before this book went to press, the trial court issued a 350-page ruling that mostly favored Georgia State. Out of ninety-nine alleged instances of infringement, the court sided with the publishers only five times. Before we take a closer look at the federal district court’s analysis, it’s important to note that the publishers have already appealed this decision to the United States Court of Appeals for the 11th Circuit. At the time you read this, there may already be a decision from the appellate court, which you definitely will want to look at.
In the Georgia State case, all the alleged infringements the court considered involved chapters and other excerpts from nonfiction books used as supplemental reading in courses (in addition to assigned textbooks), with access limited to students enrolled in the applicable course. The court found that the first factor in the fair use test (character and purpose of the use) favored Georgia State in all instances because the copying was done for nonprofit educational purposes. The court also found that the second factor (nature of the work) always favored Georgia State because all the works copied were nonfiction.
On the third factor (amount and substantiality of the portion used), the court held that the limits suggested by the Classroom Guidelines were too ​restrictive. Like the American Association of University Professors, the American Association of Law Schools, the American Library Association, and the authors of this book, the court believed that classroom copying could be considered a fair use even if it goes beyond the Classroom Guidelines. In place of the Guidelines’ much more restrictive standards, the court held that copying not more than 10% of a book or, in books with ten or more chapters, not more than one chapter, would indicate fair use under factor three. In this case, Georgia State’s copying was mostly within the limits set by the court.
Does that mean you can always copy up to 10% of a book and call it a fair use? No. The court made it clear that its 10%-or-one-chapter rule was specific to the facts of this case. Does that mean you can never copy more than 10%? Again, the answer is no. Remember that the third factor is just one part of the fair use test.
As for the fourth factor (effect on potential market or value), the court found that the plaintiffs had not lost any book sales as a result of the copying and only a very small amount of permissions revenue. Nonetheless, the court held that if a digital license for an excerpted work was readily available and reasonably priced, the fourth factor would favor the publishers. In this case, digital licenses typically were not readily available, and so the fourth factor usually favored Georgia State.
Because the first and second factors always favored Georgia State, and the third and fourth factors usually did too, nearly all the instances of copying in this case were fair uses. The court’s fairly liberal limits on the amount of copying and its skepticism about the publisher’s lost sales were the key to Georgia State’s win. Now we must wait to see what the U.S. Court of Appeals says.
Finally, we’ll address one last question that sometimes comes up: by asking the owner for permission, are you giving away any fair use rights ​you might have? In Campbell v. Acuff Rose, the Supreme Court said no. You may still use a copyrighted work under the fair use doctrine, even if you’ve asked for and been denied permission. Just be sure that your use is a fair use. Remember that nothing a copyright owner says can diminish your fair use rights without your consent.
* ↑ See 7 U.S.C. § 108(f)(4) (2006) (stating that nothing in section 108 affects libraries’ fair use rights).
* ↑ 2 Story 100, 9 F. Cas. 342 (C.C. Mass. 1841) (No. 4,901).
* ↑ H.R. Rep. No. 94-1476, at 66 (1976).
* ↑ Id. at 65.
* ↑ Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).
* ↑ H.R. Rep. No. 94-1476, at 66.
* ↑ Harper & Row v. Nation Enters., 471 U.S. 539, 561 (1985).
* ↑ 17 U.S.C. § 107 (2006).
* ↑ Encyclopedia Britannica Educ. Corp. v. Crooks, 542 F. Supp. 1156 (W.D.N.Y. 1982).
* ↑ Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983).
* ↑ 510 U.S. 569 (1994).
* ↑ 510 US. at 579.
* ↑ 60 F.3d 913 (2d Cir. 1994).
* ↑ Harper & Row v. Nation Enters., 471 U.S. at 563.
* ↑ Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), opinion supplemented and reh’g denied, 818 F.2d 252 (1987).
* ↑ Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
* ↑ In Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264 n. 8 (2d Cir. 1986), the appeals court wrote: We also note that Pregnant by Mistake was out of print when Rachel Weeping was published. While this factor is not essential to our affirmance of the district court’s finding of fair use, it certainly supports our determination. The legislative reports have provided some guidance on this issue: “A key, though not necessarily determinative, factor in fair use is whether or not the work is available to the potential user. If the work is ‘out of print’ and unavailable for purchase through normal channels, the user may have more justification for reproducing it than in the ordinary case, … S. Rep. No. 94-473, 94th Cong., 1st Sess. 64 (1965); H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 67 (1976) … .” In Sony Computer Entm’t Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1028 (9th Cir. 2000), the Ninth Circuit wrote the following: For instance, if the copyrighted work is out of print and cannot be purchased, a user may be more likely to prevail on a fair use defense. … On the other hand, if the copyrighted material is unpublished and creative while the copy is a commercial publication, courts would be less receptive to the defense of fair use.
* ↑ 471 U.S. 539 (1985).
* ↑ “[T]o the extent that the compilation of a journal issue involves an original work of authorship, the publishers possess a distinct copyright in each journal issue as a collective work.” American Geophysical Union v. Texaco, 60 F.3d 913, 918 (2d Cir. 1994). Issues of illustrated magazines such as Rolling Stone or Time clearly warrant copyright protection as collective works because of the creativity involved in selecting and arranging the articles, photographs and graphics. Other periodicals (such as law reviews) may arguably lack such creativity, but the safest approach is to treat all periodical issues as collective works.
* ↑ Washington Bus. Info., Inc. v. Collier, Shannon & Scott, No. 91-CV-305 (E.D. Va., filed Feb. 26, 1991). See James Gibbs, Copyright and Copy Rights, Legal Times, May 3, 1993, at S33.
* ↑ The New York Times wrote that the settlement, including legal fees, “may have cost Collier, Shannon $1 million.” David Margolick, When a Firm Tries to Cut Corners, It Is Caught in Copyright Embarrassment, N.Y. Times, Dec. 6, 1991, at B-7.
* ↑ Pasha Publ’ns, Inc. v. Enmark Gas Corp., 22 U.S.P.Q.2d (BNA) 1076, 1992 Copyright L. Dec. (CCH) ¶ 26,881, 19 Media L. Rep. (BNA) 2062, 1992 U.S. Dist. LEXIS 2834 (N.D. Tex. 1992).
* ↑ Television Digest v. United States Tel. Ass’n, 1994 Copyright L. Dec. (CCH) ¶ 27,191, 28 U.S.P.Q.2d 1697, 21 Media L. Rep. (BNA) 2211, 1993 U.S. Dist. LEXIS 19143 (D.D.C. 1993).
* ↑ Lowry’s Reports, Inc. v. Legg Mason, Inc., 302 F. Supp. 2d 455 (D. Md. 2004); Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737 (D. Md. 2003).
* ↑ American Geophysical Union v. Texaco, Inc., 802 F. Supp. 1 (S.D.N.Y. 1992).
* ↑ American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1994).
* ↑ The court pointedly distinguished copying at corporations such as Texaco from those whose business is to make copies, such as copyshops, when it wrote Our concern here is that the [trial] court let the for-profit nature of Texaco’s activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case, i.e. Texaco’s profits, revenues, and overall commercial performance were not tied to making copies of eight Catalysis articles for Chickering. … Rather, Texaco’s photocopying served, at most, to facilitate Chickering’s research, which in turn might have led to the development of new products and technology that could have improved Texaco’s commercial performance. Texaco, 60 F.3d at 921.
* ↑ Id. at 919–20.
* ↑ Id. at 920.
* ↑ Id. at 922–24.
* ↑ Harper & Row, 471 U.S. at 566.
* ↑ “Prior to Campbell, the Supreme Court had characterized the fourth factor as ‘the single most important element of fair use,’ Harper & Row, 471 U.S. at 566. … However, Campbell’s discussion of the fourth factor conspicuously omits this phrasing. Apparently abandoning the idea that any factor enjoys primacy, Campbell instructs that ‘[a]ll [four factors] are to be explored, and the results weighed together, in light of the purposes of copyright.’” Texaco, 60 F.3d at 926.
* ↑ Id. at 927–29.
* ↑ Campbell, 510 U.S. at 590.
* ↑ “Though the publishers still have not established a conventional market for the direct sale and distribution of individual articles, they have created, primarily through the CCC, a workable market for institutional users to obtain licenses for the right to produce their own copies of individual articles via photocopying. The District Court found that many major
* ↑ Id. at 931.
* ↑ Michael C. Elmer & John F. Harnick, In-House Photocopying Subject to New Challenges, Legal Times, Apr. 25, 1983, at 11.
* ↑ See infra p. 48.
* ↑ Anna Snider, Firm Settles Photocopy Charges, Nat’l L.J., Mar. 22, 199.
* ↑ See infra p. 48.
* ↑ West Publ’g Co. v. California Law Retrieval Serv., No. 93-7137 (C.D. Cal., filed Nov. 24, 1993); West Publ’g Co. v. Aaron/Smith, No. 89-CV-2693 (N.D. Ga., filed Dec. 1, 1989); West Publ’g Co. v. Faxlaw, No. 91-CV-293 (S.D. Fla., filed Feb. 12, 1991).
* ↑ Basic Books, Inc. v. Gnomon Corp., Copyright L. Dec. (CCH) ¶ 25,145, at 15,847, 1980 U.S. Dist. LEXIS 10981 (D. Conn. 1980).
* ↑ Harper & Row, Publishers, Inc. v. Tyco Copy Serv., Inc., Copyright L. Dec. (CCH) ¶ 25,230, at 16,361; 1981 U.S. Dist. LEXIS 13113 (D. Conn. 1981).
* ↑ Addison-Wesley Publ’g v. New York Univ., 1983 Copyright L. Dec. (CCH) ¶ 25,544, at 18,203 (S.D.N.Y. 1983).
* ↑ Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
* ↑ Princeton Univ. Press v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996).
* ↑ Steven Zeitchik & Judith Rosen, CCC Charges Copy Shop with Infringement, Publishers Wkly., Oct. 21, 2002, at 9.
* ↑ Steven Zeitchik, Four Publishers Sue L.A. Copy Shop, Publishers Wkly., Jan. 27, 2003, at 113.
* ↑ Judith Rosen, CCC Settles with Copy Shop, Publishers Wkly., Mar. 10, 2003, at 18; Judith Rosen, CCC Settles One Suit, Files Another, Publishers Wkly., July 14, 2003, at 12.
* ↑ Jesse Noyes, Suit Targets Shops Copying for Classrooms, Boston Herald, Nov. 16, 2005, at 34.
* ↑ Christian B. Flow, What’s in a Gnomon?, Harvard Crimson, Oct. 13, 2006.
* ↑ Texaco, 60 F.3d at 931.
* ↑ Id. at 916.
* ↑ “Works made for hire” are owned by the employer. If the creator is an independent contractor, the work is considered a “work made for hire” if it comes within one of nine categories listed in section 101 of the Act and if there is also a written agreement specifying that the work is a “work made for hire.” If the work was prepared by an employee, whether it is a work made for hire depends on (1) control by the employer over the work, such as whether the work was prepared at the employer’s location, whether the employer determined how the work was done, and whether the employer provided equipment or other means that supported the creation of the work; (2) control by the employer over the employee; and (3) the status and conduct of the employer, such as the employer being in the business of producing these kinds of works. See U.S. Copyright Office, Circular 9: Works Made for Hire Under the 1976 Copyright Act (rev’d April 2010), available at http://www.copyright.gov/circs/circ09.pdf. Most university policies assume that a professor owns his or her scholarly work unless there is significant investment by the university. See, e.g., University of California, Office of Technology Transfer, Copyrighted Works Created at the University of California, available at http://www.ucop.edu/ott/faculty/crworks.html.
* ↑ H.R. Rep. No. 94-1476, at 68–70. The Guidelines are reproduced in Appendix C to this book.
* ↑ Id. at 72.
* ↑ Id.
* ↑ The Model Policy is reproduced in Appendix D to this book and is available at http://library.ucmo.edu/circulation/Model_Policy.pdf.
* ↑ The Conference on Fair Use, Final Report to the Commissioner on the Conclusion of the Conference on Fair Use (Nov. 1998). The Final Report notes (at pp. 15–16) that the working group reached an impasse over the scope and language of possible electronic reserve guidelines. However, some members of the working group continued to meet, and drafted for comment proposed guidelines. At the CONFU plenary session on September 6, 1996, several organizations, including the American Association of Law Libraries, the American Council on Learned Societies, the Music Library Association, and the Special Libraries Association, supported the draft. Others, including ASCAP, the Association of American Publishers, the Authors Guild/Authors Registry, and the Association of Research Libraries, did not. It was ultimately decided that the proposed electronic reserve guidelines would not be disseminated as a formal work product of CONFU. The Final Report, which does not include the draft electronic reserve guidelines, can be found at the Patent and Trademark Office website http://www.uspto.gov. The proferred draft electronic reserve guidelines may be found on the University of Texas’s Web site at http://copyright.lib.utexas.edu/rsrvguid.html and are reproduced in Appendix F.
* ↑ Available at http://www.arl.org/bm~doc/code-of-best-practices-fair-use.pdf and reproduced in Appendix M.
* ↑ Available at http://www.copyright.com/content/dam/cc3/marketing/documents/pdfs/Using-Electronic-Reserves.pdf.
* ↑ Cambridge University Press v. Becker, No. 08-01425, slip op. (N.D. Ga. May 11, 2012).
* ↑ Id. at 1–3.
* ↑ Id. at 338–39.
* ↑ Id. at 36, 40–41.
* ↑ Id. at 48–54.
* ↑ Id. at 58–59.
* ↑ See infra pp. 58–59.
* ↑ Cambridge University Press at 87–88.
* ↑ Id. at 6.
* ↑ Id.
* ↑ Id. at 33, 74.
* ↑ Id. at 79–80.
* ↑ Id. at 78.
* ↑ “Being denied permission to use a work does not weigh against a finding of fair use.” Campbell, 510 U.S. at 585.