Document created: 31 December 03
Air University Review, January-February
1972
Lieutenant Colonel William H. Carnahan
The United States Copyright Act grants authors “certain exclusive rights” to exploit their works in order to encourage authorship that inures to the benefit of all mankind.1 Its power consists only in preventing others from reproducing copyrighted work.
The act has significant bearing on the use, recording, and reuse of
materials for education purposes. Because of the vital role of education in
American society, educators desire maximum availability of all kinds of
teaching materials and resources. On the other hand, without financial and
other incentives, authors might not prepare the very materials educators need.
Both the Constitution and currently proposed revisions of the Copyright Act
recognize that there must be a proper balance between free use of creative
works and incentives necessary to encourage authorship of those works.2
Educators continue to press for statutory recognition of limited copying for
instructional purposes.3 They argue that the teacher has no time to
obtain the requisite permission to copy and distribute an excerpt from a book,
and, if he must obtain permission, he will not use the particular work.
Consequently, the students suffer. Because modern copying machines are very
efficient and easy to handle, and since they have become relatively inexpensive
and even commonplace, it is feared that statutory recognition of limited
reproduction will lead to widespread copying, amounting to confiscation of an
author’s product. The opponents of a copying privilege for educational use
point out that copying machines are currently used by schools to copy articles
from encyclopedias, works of history, source books, dictionaries, atlases, and
many other scholarly works that are not read in their entirety but used a few
pages at a time. They also argue that a school need have only one copy of such
books, where formerly it had many. This curtailment of the publisher’s market
reduces the very incentive which copyright legislation is designed to promote.4
One who is both an educator and an author enjoys the advantage of being clearly on one side of the fence or the other at anyone time. As the petitioner for permission to copy materials belonging to someone else, he seeks the greatest possible latitude in their use. Once his own book has been published, however, he becomes part of the defending establishment and expects—quite rightly—that his work will be carefully protected against infringement. This is precisely the dilemma in which faculty members at the Air Force Academy, Air University, and other educational institutions find themselves. The major reasons an educator copies a work without obtaining prior permission are the need for immediate use and the bother involved in seeking such permission. The delay in obtaining permission seriously handicaps the efforts of the classroom instructor.
During the past four years I have received numerous requests for guidance from academic departments and military training officers involved in classroom instruction. Like all educators, they desire almost unlimited accessibility of teaching materials and other resources. In addition to books and like materials, classrooms at the Academy and elsewhere are typically equipped with audiovisual devices such as closed-circuit radio and television, projectors, and other recording instruments. The present copyright law places severe limitations on the use of these materials even for educational purposes.
As in any situation throughout military and civilian academe, the classroom instructor here at the Academy is faced with the daily challenge of presenting his students the most interesting and informative lessons possible. This entails considerable preparation of lesson plans. Faculty members are continually engaged in “disciplinary research” of source material to aid in the preparation of their lesson plans, as well as for use as handouts, visual aids, and other teaching devices. These materials are in addition to the required textbooks, notebooks, and supplemental readings. To complicate matters further, many of the academic departments write their own texts.
Because much of the source material unearthed by the researcher is copyrighted, both the classroom instructor who desires to use it in his lesson plans or as handouts or slides and the academic department that desires to include copyrighted material in textbooks are clearly at an impasse with the provisions of the copyright law which prohibit copying.
Although the copyright statute speaks of the “exclusive rights” of a copyright holder, some copying of copyrighted works is permitted. For example, book reviewers may quote brief passages from copyrighted works in their criticisms, and newspapers often contain brief synopses of operas and plays. Although such uses would appear to infringe on the “exclusive rights” of a copyright holder, the courts have found no infringement because the uses have been “fair.” Thus, the rights of a copyright owner are not quite “exclusive.” Under the judicial doctrine of “fair use,” some copying of a copyrighted work is permissible provided the copying is reasonable and the rights of the owner are not materially impaired.
There are two bases for the doctrine of fair use: the public good in the dissemination of knowledge and the negligibility of the use. Theoretically, at least, the primary purpose for providing copyright protection is the “public good” (i.e., to encourage authorship by offering the incentive of protection). And it is also for the public good that reasonable copying of copyrighted works be allowed.
Another basis for fair use is the doctrine of deminimis non curat lex (“the law will not concern itself with trifles”). To sustain an action for infringement of copyright, a substantial portion of the whole or a material part must be reproduced. To determine what is a substantial copy or a material reproduction, the courts look to such factors as the part of the author’s work taken, the part the user contributed to his own work, the value of the author’s work taken, the labor saved by using the author’s work, the amount of original work added to the author’s work, whether the user’s work could serve as a substitute for the author’s work, and interrelated factors of competition, commercial gain, loss to the copyright holder, and the number and quality of copies.
One of the leading cases that placed an upper limit on the scope of fair use in the area of educational endeavor is McMillan v. King. The defendant, an economics teacher, expected his students to possess a copy of plaintiff’s text. However, he prepared and distributed to his students, in advance of class, brief outlines of the material to be dealt with in class. All outlines were subsequently returned to the defendant and destroyed. Each outline contained frequent quotation of words and occasional quotation of sentences directly from the plaintiff’s book. The court found that the defendant had attempted to reproduce an abridged and paraphrased form of the author’s treatment of the topic and that the students might believe they could meet the course requirements by reading the outlines rather than using the plaintiff’s book. Because this went beyond fair use, the plaintiff was granted an injunction.5 Some writers believe this 1914 case would not be controlling today.
In a 1962
case, Withol v. Crow, the plaintiffs owned the copyright of a musical
composition. Crow, the defendant, was head of the music department of a junior
college. Without permission of plaintiffs, Crow copied a song, incorporating it
in a new arrangement made by him, and reproduced forty-eight copies on the
school’s duplicating machine. The District Court was of the opinion that defendant’s
innocent intent had a bearing on the question of fair use and ruled that Crow
did nothing more than make a fair, noninfringing use of the copyrighted song.
The Court of Appeals reversed the decision, noting that “it is not conceivable
.
. . that the copying of . . . substantially all, of a copyrighted song can be
held to be ‘fair use,’ merely because the infringer had no intent to infringe.”6
From the discussions in Withol and in McMillan, it would appear that copying even for educational purposes (a public good) is an infringement of the author’s copyright, unless it can be justified under the doctrine of fair use.
The present Copyright Act does not impose an insurmountable barrier to
educators intending to use copyrighted materials for teaching purposes.
However, because the act is over fifty years old, it does not specifically
address itself to many of the problems raised by modern educational techniques.
In 1955 Congress authorized the Copyright Office to undertake a program of
studies leading to a general revision of the act. House Resolution HR 4347,
introduced in 1965, is a culmination of these studies as well as of a series of
long debates and rejections of several proposals for revision. HR 4347, among
other things, attempted to clarify the rights of educators as users of
copyrighted materials. Basically, it would have first granted to the author a
somewhat broader copyright protection and then would have provided a number of
specific exemptions for educational uses in addition to expressly preserving
the doctrine of fair use. However, from 1955 until the 1967 proposed revision,
this suggested course of action was successfully opposed. The implications of
the opposing positions of authors and publishers on the one hand and of
educators on the other extend far beyond the specific arguments enumerated.
They involve fundamental questions of social policy. But bearing in mind that
the basic constitutional purpose of granting copyright protection is the public
good to be derived from the advancement of learning, the House committee in its
1967 report on HR 2512 recognized that the potential destruction of incentives
to authorship presented a serious problem. At the same time the committee,
recognizing a need for greater certainty in protection of educators, made a
careful study of the judicial doctrine of fair use to determine whether it
should be given express statutory recognition.7 The committee’s
evaluation found that it would be necessary and proper to insulate a teacher, who
honestly and reasonably believed what he was doing constituted fair use, from
excessive liability and subject him only to a minimum statutory liability.8
The committee also proposed that Section 107 of the act be amended to characterize fair use as generally being “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”9 (Emphasis added.)
Section 107, as revised by the committee, is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the committee believed that the courts must be free to adapt the doctrine in particular situations on a case-by-case basis.
The expanded statement of the Fair Use Doctrine and amended Section 107 offer some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can arise in particular cases precludes a formulation of exact rules in the statute. Since this section, if enacted, would represent the first statutory recognition of the doctrine in our copyright law, some explanation of the considerations behind the language used is necessary. This is particularly true as to copying by teachers, because in this area there are few if any current judicial guidelines. The doctrine of fair use, when properly applied, is broad enough to permit reasonable educational use, and education has something to gain in the enactment of a bill that clarifies what may now be a problematical situation.
The criteria contained in the statute must necessarily be broad and illustrative rather than detailed and conclusive, but it may provide educators with a basis for establishing workable practices and policies. The new language of Section 107 makes it clear that, assuming the applicable criteria are met, fair use can extend to the reproduction of copyrighted material for purposes of classroom teaching.
purpose and character of the use
The fair use doctrine in the case of classroom copying would apply to the situation of a teacher who, acting individually and at his own volition, makes one or more copies for temporary use by himself or his students in the classroom. A different result is indicated where the copying is done by the educational institution, school system, or larger unit or where copying was required or suggested by the school administration.
Depending upon the nature of the work and other criteria, the fair use doctrine should differentiate between the amount of a work that can be reproduced by an instructor for his own classroom use (for example, for reading or projecting a copy or playing a tape recording) and the amount that can be reproduced for distribution to a large number of students. In the case of multiple copies, other factors would be whether the number reproduced was limited to the size of the class, whether circulation beyond the classroom was permitted, and whether the copies were recalled or destroyed after temporary use. For example, the complete reproduction of a fairly long poem in examination questions distributed to all members of a class might be fair use, while the distribution of separate copies of the poem without restrictions might not be.
Spontaneous copying of an isolated extract by an instructor, which may be a fair use under appropriate circumstances, could turn into an infringement if the copies were accumulated over a period of time with other parts of the same works (McMillan, supra) or were collected with other material from various works so as to constitute an anthology. There are certain classroom uses which, because of their special nature, would not be considered an infringement in the ordinary case. For example, copying of extracts by students as exercises in a shorthand or typing class or foreign language study or recording of performances by music students for purposes of analysis and criticism would normally be regarded as a fair use unless the copies or phonorecords were retained or duplicated.
nature of the work
The character and purpose of the work will have a lot to do with whether its reproduction for classroom purposes is fair use or infringement. For example, in determining whether an instructor could make one or more copies without permission, a news article or photograph from a daily newspaper would be judged differently from a full musical score or a musical composition (Withol, supra). With respect to material in newspapers and periodicals, the doctrine of fair use should be liberally applied to allow copying of items of current interest to supplement and update the students’ texts, but this would not extend to copying from periodicals published primarily for student use.
A key factor is whether or not the work is available commercially to the user. If the work is out of print and cannot be purchased through normal channels, the user may have more justification for reproducing it than in the ordinary case; however, the existence of firms licensed to provide photocopies of out-of-print works at reasonable cost is another factor to be considered. The applicability of the fair use doctrine to unpublished (and hence uncopyrighted) works is narrowly limited, since, although the work is unavailable, this is a result of a deliberate choice on the part of the owner. Under ordinary circumstances, the owner’s “right of first publication” would outweigh any needs of reproduction for classroom purposes—unless, of course, the owner grants permission for limited instructional use.
amount and substantiality of material
Educators have sought a limited right for an instructor to make a single copy of an “entire work” for classroom purposes. This is not generally intended to extend beyond a “separately cognizable” or “self-contained” portion (for example, a single poem, story, or article) in a collective work, and no privilege has been sought to reproduce an entire collective work (for example, an entire periodical issue) or a sizable integrated work published as an entity (a novel, treatise, etc.). Subject to this limitation and to the other relevant criteria previously mentioned, the reproduction by educators of a single copy would appear to be within the scope of fair use. They have also sought statutory authority for the privilege of making a “reasonable number of copies or phonorecords for excerpts or quotations . . . provided such excerpts or quotations are not substantial in length in proportion to their source.” It would also appear that the copying for classroom purposes of extracts or portions that are not self-contained and are relatively “not substantial in length” when compared to the larger, self-contained work from which they are taken should be considered fair use. Dependent on the circumstances, the same may also be true of very short, self-contained works such as a four-line poem or a map in a newspaper.
effect of use on the potential market
The effect of use on a potential market for the work is one of the most important of the criteria of fair use. However, this criterion should always be judged in conjunction with the other three criteria. With certain special exceptions (use in parodies or as evidence in court proceedings), a use that supplants any part of the normal market for a copyrighted work would ordinarily be considered an infringement. As in any other case, whether displacement would result from reproduction by a teacher for classroom purposes requires an evaluation of the nature and purpose of the use, type of work involved, and the size and relative importance of the portion taken. Where the unauthorized copying displaces what realistically might have been a sale, no matter how minor the amount of money involved, the interests of the copyright owner need protection. Isolated instances of minor infringements, when multiplied many times, become in the aggregate a major inroad on copyright that must be prevented.
Even in anticipation of statutory approval of the fair use doctrine, I believe the proper approach to the use of a protected work is, first, to ask permission of the author, publisher, or assignee of the copyright holder, and then to make payment, if requested, for the privilege of using the work. The public interest will not be served by statutory resolution of the conflict between educators and copyright owners without a supplemental arrangement for paying for uses that would not otherwise be freely allowed.
At the same time, I recognize the dilemma in which the classroom instructor finds himself when, for example, two days before class he discovers an article in a current periodical that he wants to use as a handout or in a lesson plan. The expanded statement of the fair use doctrine and amended Section 107 already discussed will provide relief under these circumstances.
As I have indicated, fair use involves, among other things, considerations of quantity, quality, and purpose. It is on this basis that the publisher assesses petitions to copy, making careful distinction between requests for release of materials for anthology use and brief quotations to be used for purposes of citation or illustration. In general, all reputable publishers—commercial as well as scholarly—are, or try to be, liberal about granting permission without a fee for purposes of citation. When they reply to such requests as “to quote five lines” from a scholarly work, often they not only grant permission but explain why the inquiry need not have been made.
When advising faculty members in their efforts to clear permission for extracts within works to be published or printed at the Academy, I have pointed out that the act of requesting permission represents an abandonment of fair use. By requesting permission, the petitioner subjects himself to the terms imposed by the response. In borderline cases the copyright holder—for example, a publisher who wishes to recover the cost of replying to the letter—may be tempted to charge a fee. (It should be noted, too, that the requester’s inability to locate the copyright holder may not necessarily absolve him from a later charge of infringement.)
The copyright status of the selection should be investigated very carefully before an attempt is made to secure permission, in order to eliminate materials in the public domain and to determine the proper authority to which the inquiry is to be directed.
Among types of requests that are usually granted without fee are the following:
Copyright holders examine requests carefully, and therefore it is important that the inquiry supply full and exact information concerning the material requested and its intended use. The request should identify the exact passages, diagrams, photographs, illustrations, or other materials desired. It should supply the title and author’s name of the work in which the requested material is to appear and state whether it is a textbook, workbook, notebook, or whatever. Appended herewith is an example of one type of request for permission that may be used at any institution, with modifications as necessary.
United States Air Force Academy
Notes
1. 17 USC Secs 1-5.
2. U.S. Constitution, Article 1, Section 8 (8). House Committee on the Judiciary, 88th Cong., Second Session. Copyright Law Revision, further discussion and comments on preliminary draft for revised U.S. Copyright Law, 218 (Commission Print 1964).
3. Under present copyright law, a person who complies with the provisions for obtaining copyright acquires the exclusive right to print, reprint, publish, copy, sell, translate or make any other versions thereof.
4. For a more detailed discussion of copying by mechanical means see “Copyright or Wrong” by the author, Air Force Judge Advocate General’s Law Review, XII, Winter 1970.
5. 223 F. 863 (D. Mass. 1914). The rule is different with respect to unpublished material in which common law copyright is deemed to exist, where presentation of material is confined to the classroom. In such a case the common law rights of the author would not be abridged because of the limited nature of the presentation for instructional purposes. See Bartelett v. Crittenden et al., Cir Ct. Dist. of Ohio, (1849) 5 McLean 32, 2 Fed Cas 967 (Fed Case No. 1,076), which held that neither right of property in a manuscript nor copyright in published work is abandoned or transferred by an author using the manuscript or work to impart instruction to pupils.
6. 309 F. 2d 777, 781 (8th Cir. 1962).
7. The result of this study was S543 9Ist Cong., 1st Sess (1969). This legislation did not pass the 91st Congress. However, it will be resubmitted during the 92nd Congress.
8. #504c (2) . . . In a case where an instructor in a nonprofit educational institution, who infringed by reproducing a copyrighted work in copies or phonorecords for use in the course of face-to-face teaching in a classroom or similar place normally devoted to instruction, sustains the burden of proving that he believed or had reasonable grounds for believing that the reproduction was a fair use under Section 107, the court in its discretion may remit statutory damages in whole or in part.
9. #107 (S543, supra) Limitations on Exclusive Rights: Fair Use. Notwithstanding the limitations 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, scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:
(1) the purpose and character of the use;
(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.
Lieutenant Colonel William H. Carnahan (J.D., University of Notre Dame) is Associate Professor of Law and Deputy Staff Judge Advocate, USAF Academy, where he is also principal adviser on copyright matters. He has served as Staff Judge Advocate, Chicago Air Defense Sector, and 327th Fighter Group, Truax Field, Wisconsin, and as Executive Staff Judge Advocate, Hq PACAF.
Disclaimer
The conclusions and opinions expressed in this
document are those of the author cultivated in the freedom of expression,
academic environment of Air University. They do not reflect the official position
of the U.S. Government, Department of Defense, the United States Air Force or
the Air University.
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