Many instructors believe that using copyrighted materials for educational purposes is automatically deemed fair use of those materials in their entirety, forever.
Here is the truth:
The definition of “fair use” is the right to use some or all of copyrighted material without being required to compensate the author. In most cases, “the author” really is “the publisher”, as the author often cedes some or all of their ownership rights to those publishers and others who distribute the material. Promoting, distributing, and selling material is labor-intensive, and most publishers would like to reap some financial profit from this work.
How Would You Feel If…
How would you feel if you wrote a book and got no money for it? Or the number of uses of an item were not calculated into your royalty costs?
Depending on the contracts that they have signed with publishers and vendors, authors also would like to earn a percentage of the sales from the publishers. Those publishers that give authors a percentage of the profits from their works (“royalties” for books) calculate that percentage by taking the retail price of the book and subtracting publisher’s expenses. Publishers that grant royalties (or even better, those who provide an advance) anticipate that an author’s book will sell well.
How Many Copies of That Book Chapter Did You Make?
Let’s say you write a book, and the library purchases a copy. That sale = some profit for you. Library users are allowed to borrow the book (or download the book if it is an EBook) as many times as they wish, which spreads the word about your book and may encourage people to actually buy their own copy. For academic purposes, sometimes professors only want their students to read a chapter or two of a book. Out of the goodness of their hearts, they may do one of a few things:
1. Put a book on physical reserve;
2. Make copies of the chapters for the entire class;
3. Incorporate your chapters in a course pack that they make and sell!
Are any of these fair use? Which option would have the least effect on your royalties? Which option would make you want to hunt someone down and kill them?
Spontaneous Use vs. Fair Use
The United States Copyright Office does not want to impede the academic freedom or creativity of faculty. Faculty always discover new information that they would like to share with their students. For this reason they might make 50 copies of a book chapter for their students the day that they discover that chapter, and distribute those copies to their students on that day. That is what the U.S. Copyright Office identifies as “spontaneous use” of copyrighted material; it is not considered a copyright infringement.
If faculty would like to make 50 copies of that book chapter to distribute to their students AFTER that one spontaneous use, OR if they want to make 50 copies of that book chapter for more than one class, on a regular basis, this may impact an author’s financial well-being, as well as publisher profits. The educational institution, as well as faculty using materials, must have evidence of four factor fair use analysis to determine whether or not use of copyrighted materials for repeated educational experiences is fair.
The Georgia State Case
Publishers and authors both have the right to sue institutions that they perceive are violating copyright law. Cambridge University Press, Oxford University Press, and Sage Publications sued Georgia State University for failing to follow copyright guidelines for reserve materials. Their lawsuit was funded by the Copyright Clearance Center (who calculate prices for permission for the repeated reproduction of book chapters and magazine articles for instructional purposes so that copyright holders can get…a little…more money).
Fortunately, Georgia State University had a strong defense:
1. They had a copyright policy which addressed reserve materials;
2. They educated faculty about this policy;
3. For more than two thirds of items on reserve, there was physical evidence of four factor fair use analysis and some proof of permission to reproduce and distribute the material;
4. Digitized materials on reserve were only available through password protected course management sites for registered students, and removed at the end of the course.
In short, GSU demonstrated a GOOD FAITH EFFORT to comply with copyright guidelines. For this reason, Judge Evans ruled in favor of the university with the following statements:
— “There is no reason to believe that allowing unpaid, nonprofit academic use of small excerpts in controlled circumstances would diminish creation of academic works”;
— Colleges and universities must refer back to Circular 21: Reproduction of Copyrighted Works for Educators and Librarians”, which provides benchmarks for the amount of a work that can be copied.
Screw The Copyright Clearance Center Mafia
Don’t want to pay Copyright Clearance Center for repeated use of works that exceed the amounts that fair use allows? There are lots of FREE, LEGAL ways to avoid them! I will show you how in my next post.