Samford University Library,
 

The Samford University Ad Hoc Committee on Copyright Guidance

Committee Members:
Chair, Bob Schrimsher, Associate Prof of Pharm Practice, McWhorter School of Pharmacy
Della Darby, Head of Reference, University Library
Brenda Jones, Reference Librarian for Evening/Weekend Services, Beeson Law Library
Alex Bolla, Prof, Cumberland School of Law
Bill Mathews, VP Bus Affairs & General Couns, Samford University, ex-officio member

Purpose:
There are two main purposes of this committee and subsequent Web site: first, to provide guidance to Samford University faculty and staff regarding copyright issues and their complexity; second, to hopefully raise the awareness of copyright implications.

What Exactly is Fair Use?
United States Code, Title 17, Section 107 specifies that:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), 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, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  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.
Important Considerations and Annotations Concerning Fair Use Laws:
  • Likely everyone will disagree on what is "fair" and no one has a definitive, legally binding answer to most fair use questions. Congress apparently and deliberately created a flexible fair use statute that affords no exact parameters; thus, fair use very much depends on the circumstances of each case. Unfortunately, courts have provided little guidance for most educational needs.
  • The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
  • If a conclusion is made that the material intended to be used is protected by copyright law, you must assess whether your proposed use is "fair" based on the above four factors in the statute. If it is not within fair use, you generally must seek permission from the copyright owner. Consider the four factors of fair use and their possible application to your needs. It must be mindful that all four factors, and other possible circumstances, work together in the fair use equation. All academic uses are not fair use. Courts apparently have balanced these four factors to identify their overall leaning either in favor of or against fair use. It would be very useful to the reader to view court summaries which explain how the courts derived and interpreted fair use issues. It is highly suggested that if you have a copyright or fair use question (or situation), that you diligently review each above factor, and then apply them to your question or situation.
  • The law of fair use is far behind technology, modern educational efforts, and the explosion of the Internet. There are few court rulings related to the Internet, and none indicate fair use for educational purposes.1

Copying Guidelines
Not to be confused with the above law (four factors), are copying guidelines (often referred to as such, or "Classroom Guidelines," or often called "Safe Harbour Guides" because they establish very conservative parameters). These guidelines, which are reprinted below, are an adaptation of the actual copying guidelines agreed to by the Association of American Publishers and The Author's League of America with minor editorial changes. The purpose of these guidelines is to state the minimum standards of educational fair use under Section 107 of H.R. 2223. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in the future other types of copying may not be permitted under these guidelines, but may be permissible under revised guidelines. It is extremely important to recognize that these Guidelines are not the legal standards of fair use and that none of these below guidelines have been tested in court.
  1. Single Copying for Teachers:

    2. A single copy may be made of any of the following or any part thereof by or for any faculty or staff member at his or her individual request:
    1. A chapter from a book;
    2. An article from a periodical or newspaper;
    3. A short story, short essay or short poem, whether or not from a collective work;
    4. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper.

  2. Multiple Copies for Classroom Use:

    3. Multiple copies (not to exceed in any event more than one copy per student in a course) may be made by or for the faculty giving the course for classroom use or discussion, provided that:
    1. The copying meets the following tests of brevity and spontaneity as defined below; and,
    2. Meets the cumulative effect test as defined below; and,
    3. Each copy includes a notice of copyright.
    Definitions
      Brevity:
      1. Poetry: (a) A complete poem if less than 250 words and if printed on not more than two pages or, (b) from a longer poem, an excerpt of not more than 250 words.
      2. Prose: (a) Either a complete article, story or essay of less than 2,500 words, or (b) 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. [Each of the numerical limits stated in "i" and "ii" above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.]
      3. Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.
      4. "Special" works: Certain works in poetry, prose or in "poetic prose" which often combine language with illustrations and which are intended sometimes for children and at other times for a more general audience fall short of 2,500 words in their entirety. Paragraph "ii" above notwithstanding such "special works" may not be reproduced in their entirety; however, an excerpt comprising not more than two of the published pages of such special work and containing not more than 10% of the words found in the text thereof, may be reproduced.

      Spontaneity:
      1. The copying is at the instance and inspiration of the individual teacher, and
      2. 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:
      1. The copying of the material is for only one course in the school in which the copies are made.
      2. 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 one class term.
      3. There shall not be more than nine instances of such multiple copying for one course during one class term.

        4. [The limitations stated in "ii" and "iii" above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.]
  3. PROHIBITIONS AS TO I AND II ABOVE


    4. Notwithstanding any of the above, the following shall be prohibited:
    1. Copying may not be used to create or to replace or substitute for anthologies, compilations or collective works. A prohibited replacement or substitution occurs regardless of whether copies of various works or excerpts there from are accumulated or are reproduced and used separately.
    2. There shall be no copying of or from works intended to be "consumable" in the course of study or of teaching. These include workbooks, exercises, standardized tests and test booklets and answer sheets and like consumable material.
    3. Copying shall not:
      1. substitute for the purchase of books, publisher's reprints or periodicals;
      2. be directed by higher authority; or
      3. be repeated with respect to the same item by the same teacher from term to term.
    4. No charge may be made to the student beyond the actual cost of the photocopying.
References:
1. Crews KD. Copyright Essentials for Librarians and Educators. 2000. Chicago, IL: American Library Association; 48-69.
"IMPORTANT NOTICE: The opinions, analyses, and illustrations included in this section of Samford University's website reflect only the opinions, analyses and illustrations of individuals and do not necessarily reflect the views of Samford University. Furthermore, this section of the website does not provide legal advice, and no statement in this section should be relied up as being legal advice or legal counsel. The purpose of the Copyright Committee is to promote awareness of copyright issues and to provide reasoned guidance toward copyright issues as they pertain to common educational settings. Thus, the Committee offers general guidance, but not legal advice. Individuals and/or organizations seeking legal advice should consult their own attorneys."

April, 2004
 

 
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