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Copyright and the University CommunityUniversity Copy Center: Do They Pass the Fair Use Test? |
(Note: Recently the courts in another circuit decided a case addressing these same issues. For further information on this subject, please read Coursepacks and Fair Use: Issues Raised by the Michigan Document Services Case.)
Recent developments in copyright law provide the basis for potential legal claims against The University of Texas System and its component institutions with respect to the reproduction of certain printed material by "Copy Centers." A Copy Center, for purposes of this discussion, is a University facility that accommodates the needs of faculty and students for reasonably priced copies of materials that are required reading. Faculty members generally submit their required reading lists, i.e., chapters, articles, or excerpts from books and other publications, and the Copy Center prepares "packets" that contain these materials and makes them available to students. The charge for these packets is based upon the cost of preparation, including overhead, without any profit.
Ordinarily, copying printed material without the permission of the copyright owner is a violation of the rights of the copyright owners. Educational institutions have long relied upon the "fair use" exception of the copyright laws for protection from liability for the copying activities of Copy Centers.1
Section 106 of the Copyright Act provides that "Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords; . . ."
Section 107 provides that
Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Until recently most school and university copying for educational purposes was generally believed to be within the fair use exception of Section 107. State universities were further protected from liability for copyright infringement by the doctrine of sovereign immunity.2
However, the Copyright Remedy Clarification Act3 removed a state's sovereign immunity for copyright infringement, and the Kinko's case4 cast into doubt whether copying activities of University Copy Centers described above actually come within the fair use exception.
Can the Copy Center activities pass the fair use test? In order to answer this question it is necessary to review Section 107, the Kinko's case, other cases that interpret Section 107, and a document called "Agreement on Guidelines for Classroom Copying in Not-For-Profit Educational Institutions with respect to Books and Periodicals." This document, hereafter referred to as the "Guidelines," is the product of negotiations between representatives of copyright owners and certain educational institutions in an effort to address the fact that Section 107 does not give adequate guidance to educational institutions about fair use of copyright material for classroom purposes.5
Since the Guidelines are included in the House Report on the Copyright Law, they have special legal significance. As a part of the legislative history of the 1976 amendments, the Guidelines can be considered in determining the intent of Congress in amending the Copyright Act in 1976.
The facts of the Kinko's case are unique, and any event of copying we might consider here would be different from Kinko's copying in many ways; nevertheless, the analysis the court used as it examined the facts of Kinko's copying can be applied to University Copy Center activities as illustrated here and at the end of this article.
Kinko's operates a chain of copy centers all over the United States, usually located near universities and colleges. The practice the publishers complained of was Kinko's preparation of collections of excerpts from copyrighted books at the request of faculty at the nearby campuses. Kinko's copied the excerpts, assembled them into "course packets," and sold them to the students in the requesting faculty's class at a price that included a reasonable profit. Kinko's did not seek or obtain permission to copy any of the copyrighted material.
Kinko's defended the practice as, among other things, a fair use. The court analyzed Kinko's copying under Section 107 and under the Guidelines and concluded that the use was not fair, enjoined Kinko's from continuing the practice, and ordered Kinko's to pay $510,000 in statutory damages and attorney's fees and costs. The parties settled the litigation without appeal; Kinko's ultimately paid the publishers $1,875,000.
The fair use analysis of the court in Kinko's considered the following factors as recited in Section 107:
(1)[T]he 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; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The courts have repeatedly said that no single factor is determinative; that is, there is no one fact about the copying at issue that will automatically make it fair or unfair. All four factors must be examined and the conclusions as to each weighed and balanced. Additionally, findings as to one factor influence the weight given to other factors. For example, a commercial motive under the first factor will affect the weight given the third and fourth factors.6
This case-by-case balancing is so fact-dependent that it is nearly impossible to reliably predict what a court might conclude except in the most obvious situation. It is this imprecision and unpredictability that makes it so difficult to determine what is and what is not a fair use under the statute. The questions and answers at the end of this article illustrate the application of these factors to the kinds of copying done in Copy Centers.
The court's analysis of Kinko's copying activities under the Guidelines required an initial determination of whether Kinko's copying qualified as educational not-for-profit copying. The court concluded that because Kinko's copied the material in question for profit, its use of copyright works was completely outside the standards for permissible copying set forth in the Guidelines. Nevertheless, the court went on to analyze the copying according to the standards of the Guidelines to show that even if not done for profit, the copying would have been excessive.
Although the Guidelines are more specific than Section 107, their application also requires a balancing test. The Guidelines explicitly state that there may be fair uses that fall outside the Guidelines and, on the other hand, warn that copying that meets all the Guidelines' standards may nevertheless be unfair. The Guidelines thus acknowledge that they are not intended as the last word on the subject. In each case the court will ultimately be required to make a determination of whether classroom copying is a fair use under Section 107 and the cases interpreting it. With that in mind, the "tests" that classroom copying must meet in order to be within the standards of the Guidelines7 follow:
1. Brevity. Articles, stories or essays must be less than 2,500 words. Excerpts must be less than 10% of the work or 1,000 words, whichever is less.
2. Spontaneity. The decision to use the work must have been made so closely in time to the need for the work that it would be impractical to seek permission from the publisher and receive a timely reply.
3. Cumulative effect. One may not copy more than one work per author, nor for more than one class per semester, nor for more than a total of nine instances of such copying.
4. Anthology proscription. Copying that meets standards 1, 2, and 3 is prohibited if the purpose is to create or to replace or substitute for anthologies, compilations, or collective works.
Though the works created by Kinko's obviously were such compilations, the court did not find, as plaintiffs-publishers urged it to, that the Guidelines defined a per se prohibition against creating anthologies. To do that, the court reasoned, would do away with the balancing test required by Section 107 and substitute in its place a single inquiry into whether one article or excerpt were placed with another article or excerpt in a packet. Nonetheless, the court concluded that if copied works are cumulated into a compilation, that fact will weigh against the accused infringer in the balancing test.
5. Copyright notice. The original copyright notice must appear on all works copied.
6. Substitution for purchases. The copying cannot be done as a substitute for the purchase of books, publisher's reprints, or periodicals, and students may not be charged more than the actual cost for copying.
Finally, it should be noted that the Guidelines are just that. Although they are very restrictive and the fact that they were followed will be considered by the courts, they do not have binding effect. Also copied material that might not be within the Guidelines may still be a fair use under Section 107. The questions and answers at the end of this article include further discussion of the application of each of these factors to Copy Center activities.
The University of Texas System Policy8 permits copying for classroom use consistent with copyright law, but the copyright law places the responsibility on faculty members who use Copy Centers to produce documentation showing why they believe permission is not needed in a particular case.9 This requirement results from the fact that fair use is an affirmative defense to allegations of copyright infringement, and the accused infringer has the burden of proving that the use was fair. Thus, the nature of the fair use exception requires that records be kept in order to justify a claim of fair use. Copy Center employees and faculty must, therefore, be aware of the limitations of the fair use exception and be prepared to document their justification for reliance upon it.
Reliance upon the fair use exception should be restricted to those cases that are truly exceptional and are clearly within the standards set forth above and are carefully documented as to that conclusion. Conforming to this standard may in some cases result in additional costs to the student for course materials and some additional inconvenience to faculty in the preparation procedure since publishers are just beginning to react to the new "market" for copying permission created by the Kinko's decision by streamlining their permission response process. Nevertheless, it is important to make a good faith effort to stay within the bounds of fair use in order to avoid liability for copyright infringement in activities that are an integral part of University life. If in doubt, request permission to copy from the copyright owner.
1 . What is the purpose and character of the use? Is it of a commercial nature or is it for nonprofit educational purposes?
Educators' uses for classroom instruction are for nonprofit, educational purposes. This is clearly in your favor.
2 . What is the nature of the copyrighted work?
If the work copied is factual in nature, it weighs in your favor. If the work is fictional, it weighs against you.
3. Are the amount and substantiality of the portion used insignificant in relation to the copyrighted work as a whole?
Both the amount and substantiality of the part of the work copied will vary in each case. If the amount and substantiality are insignificant, it will weigh in your favor. If the amount and substantiality are great, it will weigh against you. It is possible to copy entire works and still be making a fair use of the copyrighted work, especially in the nonprofit context.10 On the other hand copying an insubstantial portion of a work that is "essentially the heart of the book" may not be a fair use.11
4. What will be the effect of the use upon the potential market for or value of the copyrighted work?
Many courts and commentators have called this the single most important element of the fair use test. It is broad and hypothetical and will weigh against the copying if it can be shown that "if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work."12
For example, copying an entire work seems likely to affect the market because the students clearly are buying the copy instead of the original work. On the other hand, where the material to be copied for classroom use is a chapter, article, or other excerpt from a larger work, which is quite common, it is not likely that the professor would expect students to buy the entire book in order to read one chapter. Thus, this kind of copying probably does not displace the market for the original.
A note of caution is in order: As copyright owners become aware of the extensive market for reprints and copying permission that was identified in Kinko's, they will certainly contend that this kind of copying displaces the market for reprints and copying permission. Courts thus far have been reluctant to let the potential loss of permission fees or royalty income change an otherwise fair use (where all the other factors already weigh in favor of fair use) into an infringing one.13 At least for now, to the extent copying tends to displace the market for the original, it will weigh against copying.
1. Is the copying brief? Are articles, stories or essays less than 2,500 words and excerpts less than 10% of the work or 1,000 words, whichever is less?
This requirement is very difficult to meet. Six pages of 12 point type generally exceed 2,500 words. Three pages of 12 point type generally exceed 1,000 words. The average length of most journal articles is probably longer than this. Exceeding these limits weighs against copying.
2. Is the decision to copy spontaneous? Is the decision to use the work made so closely in time to the need for the work that it would be impractical to seek permission from the publisher to copy it and receive a timely reply?
This factor presents a bigger problem for the copyright owner than the copier. Typically publishers are not equipped to grant permissions routinely in much less than three (3) weeks. This factor may be changing, at least partly as a result of Kinko's; however, as it is now, if the same material is copied for classroom use from semester to semester, that will clearly weigh against fair use. If a decision is reached on the reading material one or two weeks before the start of classes, it will weigh in favor of fair use, at least until the turnaround time for obtaining permission is reduced.
3. Is the copying cumulatively excessive? Has more than one work per author been copied for more than one class per semester or for more than a total of nine times?
This factor is very hard to satisfy and requires careful documentation to establish. If the copying is not within these bounds, it will weigh against fair use.
4. Is the copied work in the nature of an anthology or compilation?
Courts are likely to construe "course packets" to be in the nature of an anthology or compilation, and this factor will weigh against fair use accordingly.
5. Do the copied pages include the original copyright notice pertaining to the copied work?
Copyright notices are no longer required to protect the author's copyright interest. If the work contains one, however, be sure to copy the page containing it and include it with the part that is copied. Failure to do so will weigh against fair use.
6. Is the copying in substitution for the purchase of books, publishers' reports , or periodicals?
Where this is the case, it will weigh against a finding of fair use.
7. Are the students charged more than the actual cost of photocopying?
University Copy Centers do not charge more than actual cost, so this factor will weigh in favor of fair use.
1 Title 17, United States Code Sections 106, 107 (1993). Title 17 is the Copyright Act, as amended. All references to the Copyright Act hereafter will be to 17 U.S.C. Section ___.
2 U.S. Const. amend. XI.
3 17 U.S.C. Sections 101 note, 501, 501 note, 511, 910, 911.
4 Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991).
5 The Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, Authors League of America, Inc., and the Association of American Publishers, Inc. reached this agreement at the behest of Chairman Kastenmeier, Chairman of the Judiciary Subcommittee in June 1976, when Congress was considering amendments to the copyright law affecting fair use. The Agreement was included in the House Report on the New Copyright Law (H.R. Rep. No. 94-1476, pages 65-74) and has been relied upon by several courts in their analyses of the kind of copying discussed herein. The Association of American Law Schools and the American Association of University Professors, however, did not endorse its provisions and described it as too restrictive in the university setting (H.R. Rep. No. 94-1476, pages 65-74).
6 American Geophysical Union v. Texaco, Inc., 802 F. Supp.1 (S.D.N.Y. 1992).
7 The Guidelines are set out more fully in Appendix I of The University of Texas System Policy Statement on Photocopying (August 1992) ("System Policy"), which is available at all Copy Centers.
8 The Guidelines are set out more fully in Appendix I of The University of Texas System Policy Statement on Photocopying (August 1992) ("System Policy"), which is available at all Copy Centers.
9 University employees are protected from liability for statutory damages to the extent that they can show a good faith belief that what they are copying is permissible as a fair use and they are otherwise acting within the scope of their employment. 17 U.S.C. Section 504(c)(2)(i).
10 Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984); Williams & Wilkins v. United States, 487 F.2d 1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376 (1975).
11 Harper & Row v. Nation Enters., 471 U.S. 539, 564-65, 105 S. Ct. 2218, 2232-33 (1985).
12 Kinko's, 758 F. Supp. at 1534, citing Harper & Row, citing Sony. Harper & Row Publishers v. Nation Enters., 105 S. Ct. 2218 (1985); Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
13 See Professional Fair Use, for further discussion.
Other articles in Copyright and the University Community:
Permissible Copying of Software
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