Copyright

Academic Copying and Student Course Packets

This discussion addresses the law governing the making and distribution of multiple photocopies for students’ academic use or “course packets.” Increased use of course packets over the past years, changes in methods of obtaining permissions to copy works, and recent court decisions make it imperative that members of the University understand how the law applies.

University policy is to comply with copyright law. Respect for intellectual property rights is a shared value of the Yale community. Furthermore, violations of the law can result in liability for substantial damages to the copyright holder (and in extreme cases even criminal penalties).

The use of any copyrighted materials in course packets requires permission from the copyright holder unless the material falls under the definition of “fair use.” As discussed below, the surest way to avoid violations is to obtain permission from the copyright owner before using any copyrighted materials. However, this area of the law is complex and not entirely settled, and to adopt strict and inflexible rules on copyright compliance would, in some cases, impose burdens on faculty and students beyond those required by the law. This memorandum describes when permission is clearly not required and explains the fair use factors to be considered in evaluating whether copyright permission is required. In general, the standards for determining fair use are extremely subjective and difficult to evaluate. One should err on the side of caution by seeking permission from the copyright holder before making or having multiple copies made for students’ academic use.

Please contact the OGC if you have any questions about understanding how the copyright laws may apply to your situation.

Is A Written Work Protected by Copyright?

The first question to ask before making multiple copies of a written work is whether that work is protected by copyright. If the work is fairly contemporary, the answer most of the time will be “yes.” Copyright protects virtually all contemporary written works (in addition to other types of works in tangible form such as motion pictures and recordings), whether published or unpublished, in print or out of print. In general, the only written works, old or new, not protected by copyright, and thus considered to be in the “public domain,” are works whose copyrights have expired (all works published more than 75 years ago or before 1930), works of the United States Government and certain other official documents such as federal and state judicial opinions and statutes, and a narrow category of works published before March, 1989, that fail to carry a valid copyright notice. You may freely reproduce any work that is in the public domain. For more detailed information on when works enter the public domain please see the chart created by Lolly Gasaway, entitled “When Works Pass Into the Public Domain,” at http://www.unc.edu/~unclng/public-d.htm.

Applying the Fair Use Guidelines and the Fair Use Doctrine

Works protected by copyright can only be copied with the copyright holder’s permission, unless the copying is considered a fair use. Since the Copyright Act provides for but does not clearly delineate the boundaries of fair use, it is necessary to make a reasoned decision using the available standards and guidelines before making copies of a copyrighted work without permission.

The Guidelines for Classroom Copying. In 1976, representatives of publishers and educational institutions negotiated a document entitled “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions,” to provide guidance on what classroom copying would clearly be considered fair use. This document does not have the force of law but was incorporated in the legislative history of the Copyright Act of 1976 and has been recognized by Congress as a “reasonable interpretation of the minimum standards of fair use.” If your proposed copying falls within the Guidelines, it is a fair use. Copying which exceeds the Guidelines also may be a fair use, but you will need to undertake a more subjective analysis under the fair use factors listed below.

Guidelines:

1. Single Copies for Research or Teaching.
A single copy may be made of any of the following at the individual request of any teacher or scholar for use in research or teaching:

1. A chapter from a book.
2. An article from a periodical or newspaper.
3. A short story, short essay, or short poem.
4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.

Longer excerpts may be permissible depending on the relationship to the work as a whole. Copying should not substitute for the purchase of books or periodicals. Yale’s interlibrary services will order copies of articles or publications the library does not hold, but they record orders and may reject requests that exceed the library’s limits.

2. Multiple Copies For Classroom Use.
Multiple copies (not exceeding 1 copy per pupil) may be made by or for a teacher giving a course for classroom use, or discussion, provided that all the following requirements are met:

1. The copying is brief. In this context, brief means:
   1. poetry: a complete poem if less than 250 words and printed on not more than two pages, or an excerpt from a longer poem of not more than 250 words.
   2. prose: a complete article, story or essay of less than 2500 words, or an excerpt from a longer prose work of not more than 1000 words or 10% of the work, whichever is less.
   3. illustration: one chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
2. The copying is spontaneous.
   1. It is at the instance and inspiration of an individual teacher, and
   2. The decision to use the work and the time for its use for effective teaching are so close that it would be unreasonable to expect a timely reply to a request for permission.
3. The copying does not have an improper cumulative effect. In order for copying not to have an improper cumulative effect:
   1. the copying of the material must be for only one course.
   2. not more than one short poem, article, story, essay or two excerpts may be copied from the same author or more than three from the same collective work or periodical volume during one class term.
   3. there must not be more than 9 instances of such multiple copying for one course in one class term. (The limitations in “ii” and “iii” above do not apply to current news periodicals and newspapers or current news sections of other periodicals.)
4. The copying does not violate any of the following general prohibitions:
   1. Copying shall not be used to create, replace or substitute for anthologies, compilations, or collective works.
   2. There shall be no copying from workbooks, exercises, standardized tests and test booklet answer sheets, or any similar materials intended to be “consumed” in the course of study or teaching.
   3. Copying shall not substitute for the purchase of books, publisher’s reprints or periodicals.
   4. Copying shall not be directed by anyone other than the teacher of the class.
   5. Copying shall not be repeated in more than one semester with respect to the same item by the same teacher.
   6. No charge shall be made to the student beyond the actual cost of photocopying.
5. All materials copied under these provisions shall bear a notice of copyright on the first page. This notice should be in the following form: ( year of copyright, name of copyright owner.

Section 107 Fair Use: Copying Beyond the Guidelines. Although the Guidelines have been recognized by Congress as a “reasonable interpretation of the minimum standards of fair use” and are cited by judges in their assessment of fair use, they are not intended to limit the types of copying permitted under the standards of fair use developed by the courts. Those standards are codified in Section 107 of the Copyright Act and are known as the “fair use doctrine.”

The fair use doctrine permits the use of a copyrighted work without permission, for purposes such as criticism, comment, news reporting, scholarship, research and teaching (including multiple copies for classroom use). Generally speaking, fair use will permit the use of excerpts from a copyrighted work in these contexts, but it is not broad enough to cover most instances of copying done for student’s academic use.

In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include:

• the purpose and character of the use, including whether such use is of a commercial nature, or is for non-profit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use on the potential market for or value of the copyrighted work.

1. The First Factor: The Purpose and Character of the Use. Campus and classroom use will be for educational purposes, but the first factor is never enough without consideration of the others. In addition, if the copies were made or distributed by the professor or a copy shop for a profit, a court could find a commercial purpose.

2 The Second Factor: The Nature of the Copyrighted Work. This factor considers how close the copied work is to the core of intended copyright protection. Thus, in general, the more “creative” and “expressive” a work is, the more likely it is that a court will weigh this factor against a finding of fair use; the more factual a work is, the more likely it is that a court will weigh this factor in favor of fair use.

3. The Third Factor: The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a Whole. The third factor takes into account the quantity of the material copied, as well as its qualitative importance. Courts have held that there is no absolute rule on how much of a work may be copied and still be considered a fair use. While in most cases this factor would weigh in favor of fair use if a very small percentage of the original work were used, that may not be the case if that small amount were considered to be “the heart” of the copyrighted work.

In a case brought by publishers against Kinko’s Graphics for copying and compiling course packets ordered by professors and selling them for a profit to college students without obtaining permission from the publishers, the court found the third factor weighed against a finding of fair use where the passages copied ranged from 14 to 110 pages, representing 5.2% to 25.1% of the works. Similarly, in a case brought by Princeton University Press and others against a Michigan commercial copy center for similar activity, a court found that the third factor weighed against a finding of fair use where the copy center had copied excerpts ranging from 5% to 30% of the original works. In assessing the percentage of a work used under this factor, a court would probably consider the copying of an entire article in a journal as constituting the copying of an entire work rather than just a portion of the journal.

4. Fourth Factor: The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work. The fourth factor may be the most important in a fair use analysis. The law, as interpreted by the courts, requires that one consider both the extent of market harm caused by the particular copying at hand and at the cumulative effect on the market of copying of a similar kind. When a copyright owner has actively pursued the permissions market, for example by setting up a mechanism to charge and collect licensing fees for photocopying portions of its works, or has established a market for the direct sale of reprints or copies of individual articles, the fourth factor will probably weight against a finding of fair use.

Considering the Four Factors: As stated above, the analysis under the four fair use factors must be made on a case-by-case basis and is not easy. The analysis will frequently lead to a conclusion that the proposed classroom copying would not constitute fair use and that permission must therefore be sought from the publishers (directly or through the Copyright Clearance Center [CCC]) before the works are copied for a class. This is because copying whole articles or book chapters, as is common in course packets, would probably cause the third and fourth factors to be counted against fair use. Faculty members should therefore make decisions regarding course materials far enough in advance of class so as to leave time to conduct the fair use analysis and, if necessary, to obtain the publishers’ permission to copy.

Procedures for Obtaining Copyright Permissions

If the copying does not clearly qualify as fair use, taking into account the four fair use factors as well as the Guidelines, one can obtain permission for copying either directly from the publisher or through the Copyright Clearance Center (CCC). You can choose either to perform these tasks yourself or use a copy center that will obtain permission and pay the fees and royalties for you.

The CCC’s Academic Permissions Service. The most efficient way of obtaining permissions from many publishers is to use the Academic Permissions Service of the Copyright Clearance Center, either through an individual or departmental subscription or through a copy service that subscribes to the Service. The CCC can be contacted and permission requested on the web at http://www.copyright.com. In addition, Yale’s Reprographic Imaging Services (RIS) works directly with the CCC to obtain permissions. RIS is also available to scan and copy your course packet materials. The course packet fee charged by RIS will consist of the reproduction, assembling and permission costs. RIS requires approximately one week to ten days to fill course packet orders. You can contact RIS at 432-6560. If you bring your materials to another copy shop you should make sure that the copy shop has a permissions process.

Requesting Permission Directly from the Copyright Holder. Another way of obtaining permissions is to contact the publisher/copyright holder directly. Some publishers who are registered with the CCC will provide permissions only through the CCC while others handle direct permission requests as well. Requests for permission to copy portions of books, journals or other periodicals should be directed to the Permissions Department of the publisher/copyright holder. If your request for permission is denied or if the copyright holder imposes conditions that you are unwilling to meet, the most prudent course would be not to use the requested material. If in such situations it was a close case whether copying the materials without permission would have constituted fair use in the first place, ask the Office of the General Counsel for assistance in reconsidering the question of fair use. Click here for a sample form.

This discussion is intended to provide general guidance. If you have any questions, please contact the OGC.