- To inform the faculty and staff of the requirements of public law 94-553, which is a revision of the copyright law, Title 17 of the United States Code, Oct. 19, 1976.
- To encourage faculty and staff to be aware of the delicate balance between the copyright owner’s exclusive rights, 17 U.S.C. Sc. 106, and their responsibility to create and disseminate intellectual works under the doctrine of “Fair Use,” 17 U.S.C. Sec. 107.
- To assist faculty and staff to exercise good judgment in serving the best interest of students when reproducing copyrighted materials.
I. “Fair Use”
- Marian University recognizes, respects, and upholds the exclusive rights of copyright owners as defined in Title 17 U.S.C. Sec. 106.
- The university also recognizes the provisions of Title 17 U.S.C. Sec. 197 defining the limitations placed on these exclusive rights for purposes related to teaching, scholarship and research. These limitations constitute the doctrine of “Fair Use.”
- Factors in 17 U.S.C. Sec. 107 to be considered when determining “Fair Use” include:
- Purpose and character of the use, including whether such is of a commercial nature or is for nonprofit educational purposes.
- The nature of the copyright work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use upon the potential market for or value of the copyrighted work.
The following guidelines discuss parameters for “Fair Use” of copyrighted materials for use in research, classroom, and library reserve room (an extension of the classroom).
“Fair Use” cannot always be expressed in numbers; therefore, the four factors previously listed in Fair Use should be used to judge whether the copying is within the spirit of the “Fair Use” doctrine.
Instructors may make a single copy of any of the following for scholarly research or use in teaching or preparing 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.
- A chart, diagram, graph, drawing, cartoon, or picture from a book, periodical or newspaper.
These examples reflect the most conservative guidelines for “Fair Use.” When exceeding minimum levels, however, the four factors previously listed should be considered to make certain that any additional photocopying is justified. The following situations demonstrate where increased levels of photocopying would continue to remain within the ambit of “Fair Use”:
- The inability to obtain another copy of the work because it is not available from another library or source or cannot be obtained within time constraints.
- The intention to photocopy the material and not distribute the material to others.
- The ability to keep the amount of material photocopied within a reasonable proportion of the entire work (the larger the work, the greater the amount of material which may be photocopied).
Most single-copy photocopying for personal use in research, even when it involves a substantial portion of the work, may well constitute “Fair Use.”
Primary and secondary school educators have, with publishers, developed the following guidelines that allow a teacher to distribute photocopied material to students in a class without the publisher’s prior permission, under the following conditions:
- The distribution of the same photocopied material does not occur every semester.
- Only one copy is distributed for each student which copy must become the student’s property.
- The material includes a copyright notice on the first page of the portion of material copyrighted.
- The students are not assessed any fee beyond the actual cost of the photocopying.
In addition, the educators agreed that the amount of material distributed should not exceed certain brevity standards. Under those guidelines, a prose work may be reproduced in its entirety if it is less than 2,500 words in length. If the work exceeds such length, the excerpt reproduced may not exceed 1,000 words, or 10 percent of the work, whichever is less. In the case of poetry, 250 words is the maximum permitted. These minimum standards normally would not be realistic in the university setting. Faculty members needing to exceed these limits for college education should not feel hampered by these guidelines, although they should attempt a “selective and sparing” use of photocopied, copyrighted material. The photocopying practices of an instructor should not have a significant detrimental impact on the market for the copyrighted work. 17 U.S.C. 107(4).
To guard against this effect, one should restrict use of an item of photocopied material to one course and should not repeatedly photocopy excerpts from one periodical without the permission of the copyright owner.
Library reserve uses:
At the request of a faculty member, the library may photocopy and place on reserve excerpts from copyrighted works in its collection in accordance with guidelines similar to those governing formal classroom distribution for teaching discussed above. In general, the library may photocopy materials for reserve room use for the convenience of students both in preparing class assignments and in pursuing informal educational activities which higher education requires, such as advanced independent study and research.
If the request calls for only one copy to be placed on reserve, the library may photocopy an entire article, or an entire chapter from a book, or an entire poem. Requests for multiple copies on reserve should meet the following guidelines:
- The amount of material should be reasonable in relation to the total amount of material assigned for one term of a course taking into account the nature of the course, its subject matter and level. 17 U.S.C. 107(1) and (3).
- The number of copies should be reasonable in light of the number of students enrolled, the difficulty and timing of assignments, and the number of other courses which may assign the same material. 17 U.S.C. 107(1) and (3).
- The material should contain a notice of copyright; see 17 U.S.C. 401.
- The effect of photocopying the material should not be detrimental to the market for the work. (In general, the library should own at least one copy of the work.) 17 U.S.C. 107(4).
In addition, a faculty member may also request that multiple copies of photocopied, copyrighted material be placed on the reserve shelf if there is insufficient time to obtain permission from the copyright owner.
Uses of photocopied material requiring permission:
- Repetitive copying: the classroom or reserve use of photocopied materials in multiple course or successive years will normally require advance permission from the owner of the copyright. 17 U.S.C. 107(3).
- Copying for profit: Faculty should not charge students more than the actual cost of photocopying the material. 17 U.S.C. 107(4).
- Consumable works: The duplication of works that are consumed in the classroom, such as standardized tests, exercises, and workbooks, normally requires permission from the copyright owner. 17 U.S.C. 107(4).
- Creation of anthologies as basic text material for a course: Creation of a collective work or anthology by photocopying a number of copyrighted articles and excerpts to be purchased and used together as the basic text for a course will in most instances require the permission of the copyright owners. Such photocopying is more likely to be considered as a substitute for purchase of a book and thus less likely to be deemed “Fair Use.” 17 U.S.C. 107(4).
How to obtain permission:
When a use of photocopied material requires permission, one should communicate complete and accurate information to thecopyright owner. The American Association of Publishers suggests that the following information be included in permission request letters in order to expedite the process:
- Title, author, and/or editor, and edition of materials to be duplicated.
- Exact material to be used, giving amount, page numbers, chapters, and, if possible, a photocopy of the material.
- Number of copies to be made.
- Use to be made of duplicated materials.
- Form of distribution (classroom, newsletter, etc.).
- Whether or not the material is to be sold.
- Type of reprint.
The request should be sent, together with a self-addressed return envelope, to the permissions department of the publisher in question. Publisher addresses may be found in the library.
Works in the public domain may be copied without restriction. They include:
- Works published before Jan. 1, 1978, that do not bear copyright notice (©), the word “copyrighted,” or the abbreviation “copr” plus the year of publication and name of the copyright owner. 17 U.S.C. Sec. 401.
- All works produced before Jan. 1, 1978 and whose copyright date has expired (75 years). 17 U.S.C. Sec. 304(B). Copyright Office Circular R22 explains how to investigate copyright status of a work.
- All U.S. Government publications with few exceptions. 17 U.S.C. Sec. 105.
This policy is one specifically drafted for Marian University:
- This policy in essence embraces the reproduction of all copyrighted material, print as well as material related to new technology. The Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes are appended to this policy. They serve as policy for the reproduction of videotapes and are endorsed by the university.
- The university does not condone copying material instead of purchasing copyrighted works where this copying constitutes an infringement of “Fair Use.”
- The university requires faculty and staff to comply with these guidelines.
- The university directs faculty and staff to request permission to copy where good judgment deems appropriate.
Many sections of this policy were taken directly from Title 17, United States Code. The guidelines discussing “Fair Use” were copied with permission and with minor changes from “Model Policy Concerning College and University Photocopying For Classroom, Research and Library Reserve Use” prepared by Mary Hutchings, American Library Association’s legal counsel in March 1982, College and Research Library News 42:127–31, April 1982.
Copies of Title 17 of the United States Code “Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use,” Copyright Office Circular R21, Copyright Office Circular R22, and other materials related to copyright can be found in the library.
Reprinted by permission of the American Library Association.
Revised January 1994.
Guidelines for Off-Air Recording of Broadcast Programming for Educational Purposes
[The following excerpts are reprinted from the House report on piracy and counterfeiting amendments (H.R. 97-495, pages 8–9).]
In March 1979, U.S. Rep. Robert Kastenmeier, Chairman of the House Subcommittee on Courts, Civil Liberties and Administration of Justice, appointed a Negotiation Committee consisting of representatives of educational organizations, copyright proprietors, and creative guilds and unions. The following guidelines reflect the Negotiating Committees consensus as to the application of fair use to the recording, retention, and use of television broadcast programs for educational purposes. They specify periods of retention and use of such off-air recordings in classrooms and similar places devoted to instruction and for homebound instruction. The purpose of establishing these guidelines is to provide standards for both owners and users of copyrighted television programs.
- The guidelines were developed to apply only to off-air recording by non-profit educational institutions.
- A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable transmission) and retained by a non-profit educational institution for a period not to exceed the first 45 consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately. Broadcast programs are television programs transmitted by television stations for reception by the general public without charge.
- Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary, in classrooms and similar places devoted to instruction within a single building, cluster, or campus, as well as in the homes of students receiving formalized home instruction, during the first 10 consecutive school days in the 45-calendar-day retention period. School days are school session days not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions within the 45-calendar-day retention period.
- Off-air recordings may be made only at the request of, and used by, individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
- A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
- After the first 10 consecutive school days, off-air recording may be used up the end of the 45-calendar-day retention period only for teacher evaluation purposes, i.e., to determine whether or not to include the broadcast program in the teaching curriculum, and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
- Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
- All copies of off-air recordings must include the © copyright notice on the broadcast program as recorded.
- Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.