Copyright Guidelines
IV. Copying of Works not in the Public Domain (and not licensed by CUA)
B. Fair Use
Copyright law allows for the reasonable unauthorized use of an original work during the time of the author’s temporary monopoly when the use is thought to advance the public welfare. This exception to copyright law is known as the "Fair Use Doctrine," and it is codified at Section 107 of the copyright law. Relying on the doctrine of fair use requires educating oneself about what fair use is. The following sections set forth various ways of utilizing the fair use doctrine.
1. Safe Harbor Guidelines for Fair Use
There are no legal rules permitting the use of specific number of words counts, a certain number of musical notes, or percentages of a work. Whether a particular use qualifies as fair use depends on all the circumstances.2
That being said, the following "Agreement on Guidelines for Classroom Copying" was authored by representatives of the educational community and publishers in 1976 and made part of the Congressional Record.3 Those guidelines generally provide a safe harbor for those who are hesitant about interpreting and applying the fair use guidelines. The "Agreement on Guidelines for Classroom Copying" is considered by some to be inappropriately restrictive for academic needs. More extensive copying will, in a number of instances, qualify under fair use, and the fair use analysis above should be utilized for copying that which goes beyond the minimum guidelines printed below.
Agreement on Guidelines for Classroom Copying in Not for Profit
Educational Institutions with Respect to Books and Periodicals
Single Copies for Teachers
A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:
A chapter from a book;
An article from a periodical or newspaper;
A short story, short essay or short poem, whether or not from a collective work; or
A chart, graph, diagram, drawing, cartoon or picture from a book, periodical or newspaper.
Multiple Copies for Classroom Use
Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that the copying meets the following tests of brevity, spontaneity, and cumulative effect. Each copy must also include prominent notice that it is copyrighted material.
Brevity
Prose: Either (1) a complete article, story or essay of less than 2,500 words, or (2) an excerpt from any prose work of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.
Poetry: (1) A complete poem if less than 250 words and if printed on not more than two pages, or (2) an excerpt of not more than 250 words.
(Each of the numerical limits above may be expanded to permit the completion of an unfinished prose paragraph or line of a poem.)
Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or periodical issue.
Special Works: Certain works in poetry or prose or in "poetic prose," which may combine language with illustrations and which fall short of 2,500 words, may not be reproduced in their entirety. However, an excerpt comprising not more than two of the published pages of such a work, and containing not more than 10% of the words found in the text, may be reproduced.
Spontaneity
The copying is at the instance and inspiration of the individual instructor, and the inspiration and decision to use the work and the moment of its use for maximum teaching effectiveness are so close in time that it would be unreasonable to expect a timely reply to a request for permission.
Cumulative Effect
The copying of the material is for only one course in the school in which copies are made.
Not more than one short poem, article, story, essay or two excerpts may be copied from the same author, nor more than three from the same collective work or periodical volume during a term.
There shall not be more than nine instances of such multiple copying for one course during a term. The latter two limitations listed do not apply to current newspapers and news periodicals.
Copying shall not be used to create or replace anthologies, compilations or collective works. There shall be no copying of works intended to be consumable, such as workbooks, test booklets, etc. No charge shall be made to the student beyond the actual cost of copying. Copying shall not substitute for the purchase of books, reprints or periodicals; be directed by a higher authority, or be repeated with respect to the same item by the same teacher from term
to term.
2. Photocopying of Music
During debate on the changes made to copyright law in 1976, various representatives of the publishing industry and music teacher associations met and agreed on minimum guidelines for educational fair use on copying of music. Copying beyond the amount stated in the guidelines listed below may be justified by fair use after careful analysis, but seeking permission is always preferable.
Guidelines for Educational Use of Music
Permissible Uses
Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.
For academic purposes other than performance, single or multiple copies of excerpts of works may be made, provided that, the excerpts do not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria, but in no case more than 10% of the whole work.
Printed copies which have been purchased may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist.
A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or the individual teacher.
A single copy of a sound recording (such as a tape, disc or cassette) of copyrighted music may be made from sound recordings owned by an educational institution or an individual teacher for the purpose of constructing aural exercises or examinations and may be retained by the educational institution or individual teacher. (This pertains only to the copyright of the music itself and not to any copyright which may exist in the sound recording.)
Prohibitions
Copying to create or replace or substitute for anthologies, compilations or collective works.
Copying of or from works intended to be consumable in the course of studio or of teaching such as workbooks, exercises, standardized tests and answer sheets and like material.
Copying for the purpose of performance, except as allowed above.
Copying for the purpose of substituting for the purchase of music, except as allowed above.
Copying without inclusion of the copyright notice which appears on the printed copy.
3. Fair Use as Set Forth in Case Law and the Statute
a. The doctrine of fair use.
The doctrine of "fair use," embedded in Section 107 of the copyright law, addresses the needs of scholars and students by allowing use of copyrighted material without obtaining permission from the copyright owner in certain limited circumstances. However, what constitutes fair use is expressed in the form of guidelines rather than explicit rules. To determine fair use, one must consider all of the following four factors:
-
The purpose and character of the use, including whether the copied material will be for nonprofit, educational, or commercial use. Personal, nonprofit or educational usage tips the balance in favor of a finding of fair use. Commercial usage weighs against a finding of fair use. Criticism, commentary, news reporting and teaching (including multiple copies for one-time classroom use) are considered "core" fair uses, and thus weigh in favor of a finding of fair use. A work that parodies a copyrighted work is considered a "transformative" work and generally this type of use tips the balance in favor of a finding of fair use.
-
The nature of the copyrighted work, with special consideration given to the distinction between a creative work and an informational work. For example, photocopies made of a newspaper or newsmagazine column are more likely to be considered a fair use than copies made of a musical score, or a short story. Imaginative and unpublished works are granted greater protection than factual and published works.
-
The amount, substantiality, or portion used in relation to the copyrighted work as a whole. This factor requires consideration of the proportion of the larger work that is copied and used, and the significance of the copied portion.
-
The effect of the use on the potential market of the copyrighted work. For example, making 26 copies of worksheets from a math workbook instead of buying one for each student would probably have a negative effect on profits for the author of the workbook, and would not likely be considered fair use. On the other hand, a use that is clearly a fair use under the above three factors may be found to be a fair use even if its use could have a somewhat negative effect on the market. This factor is often granted great importance by the courts.
b. What if a judgment about fair use turns out to be incorrect?
There is a tension between encouraging the academic community to exercise the fair use doctrine in order to maximize fair use of materials and exposing the university to liability for violation of copyright rights. If the faculty member or other employee chooses to rely on the fair use doctrine, she/he must do so with prudence and fair regard for all the elements of fair use. The advice of the Office of General Counsel is that if a faculty member or other employee has any question about whether proposed copying falls within the fair use doctrine, he or she is encouraged to contact the Office of General Counsel.
The Catholic University of America Copyright Policy was approved by the Academic Senate on March 18, 1999 and should be read in conjunction with these Guidelines.
Fair Use Resources
The American Library Association Statement on Fair Use and Electronic Reserves is an excellent resource for applying fair use in the course reserve context. Another resource is Know Your Copy Rights, created in 2007 by the Association for Research Libraries, in conjunction with higher education institutions. This 2007 brochure includes a one page What you Can Do Chart that lists out different types of works, and clarifies permitted uses.
The Catholic University of America
Copyright Policy
__________________________
2 Answer to Frequently Asked Question #47, U.S. Copyright Office Web page.
3 House Report No. 1476, 94th Cong., 2d Sess. 47 (1976) reprinted in 1976 U.S.C.C.A.N. 5681-88.
Last Revised 01-Jun-07 12:44 PM.
