Guidance for Washington University in St. Louis Faculty Regarding Reproducing Copyrighted Works for Use in Teaching and Research

From the Office of the Vice Chancellor and General Counsel

Faculty members frequently find it useful to reproduce copyrighted material for use in teaching and research. In some instances, copyright law permits such copying without obtaining permission. In other instances, copyright law prohibits such copying. This memorandum provides general information about permitted and prohibited copying. Additional information (including the cited law and other resources) is available under Copyright Information. If you need further guidance, please call the Office of General Counsel at 314-935-5152.

The U.S. Constitution authorizes Congress to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The Copyright Law, Title 17 of the U.S. Code, rests on that explicit Constitutional authorization. Under the Copyright Law, the “owner” has “exclusive rights” in “original works of authorship fixed in any medium.” The copyright owner may be the author, the author’s employer or someone to whom the author has assigned ownership. “Original works of authorship” may be literary, dramatic, musical or artistic works such as poetry, novels, movies, songs, computer software or architecture. The “fixed medium” may be a traditional writing, recording or image, a computer record, or a “tangible medium of expression [not yet] developed.” (A work need not be novel or have aesthetic merit to be “original.”) Copyright does not protect “facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.” See Copyright Office Circular No. 1 (“Copyright Basics”). Subject to specific exceptions outlined in §§ 107-121 of the statute, the copyright owner has a “bundle” of “exclusive rights” — to reproduction, adaptation, distribution (by sale, rental or otherwise), performance and display. §106.This memorandum does not attempt to address all of these issues, but focuses on issues of routine concern to faculty members—copying and distribution of materials for classroom and research use.

Copying That Is Completely Unrestricted

Anyone may reproduce without restriction a published work that is not copyrighted, That is, anything in the “public domain.” Because it is no longer simple to determine whether a work is copyrighted, it is wise to assume that works are copyrighted unless you know otherwise. Assessing copyright status used to be easy: one looked for a copyright notice (ã, “copr.” or “copyright,” with the year of first publication, and the name of the owner) and could assume that its absence meant that the work was in the public domain. Under 1976 and later revisions to the statute, however, unpublished works became subject to federal copyright law and recent works are copyrighted without regard to whether they carry a copyright notice. Moreover, the growth of the Internet has exacerbated a problem that already existed with photocopying – the possibility that the absence of a copyright notice reflects the neglect of a third party who failed to affix it (rather than the author’s own omission of the notice). A substantial exception governs U.S. government publications, which cannot be copyrighted. 17 U.S.C. § 105. (Publications funded by the government, but authored by someone who is not a government employee or contractor retained to author the particular work, however, may be copyrighted.)Anyone may reproduce without restriction a published work which has entered the public domain because copyright has expired. Changing laws make determination of the expiration date somewhat complex (see copyright term information), but it is generally fair to assume that copyright has expired on any work published before 1923. Unpublished works (such as manuscripts, diaries or letters) were not considered copyrighted until 1978. These works became copyright protected in 1978 and will remain protected for 70 years from creation or through 2002, whichever period is longer. If the owners of such copyrights register them between 1976 and 2002, copyright protection will extend through 2047.

Copying with Permission

A faculty member may reproduce a copyrighted work if, and to the extent that, s/he has permission to do so. Occasionally, a copyright owner will authorize anyone to make copies of a work (an approach more common on the internet than in traditional publishing fora). More commonly, a copyright owner will grant permission to copy a portion of a work if asked to do so. Copyright owners may require the payment of royalties (ranging from modest to exorbitant) for use of copyright materials. See “how to obtain permission,” below. In certain situations (for example, the Language Lab), the university has contracts with copyright owners which authorize reproduction of certain works under specified circumstances.

Copying That Is Permitted As Fair Use

There is no general exception to copyright law permitting unauthorized copying for educational or research uses. A faculty member may reproduce a copyrighted work for classroom use and for research without securing permission and without paying royalties when the circumstances amount to “fair use.” In determining whether a use is “fair,” the law requires consideration of four factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for a not-for-profit educational purpose;
  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 on the potential market for or value of the copyrighted work. 17 U.S.C. § 107.

There is no easy formula for determining if a particular use is a fair use. In enacting Section 107 Congress endorsed “Classroom Guidelines” which, while they do not define the limits of “fair use,” create a safe harbor in which use will not be challenged. See Copyright Office Circular 21 (“Fair Use”). The American Library Association (ALA) has long endorsed a somewhat broader reading of fair use (without agreement by or challenge from copyright owners). Even under the ALA’s reading, however, fair use is narrower than many people suspect and its application must be analyzed carefully.

Single Copies

For teaching, including preparation, or for scholarly research, a faculty member may make, or have made, a single copy of a brief work or brief excerpt of a longer work, such as a chapter from a book; an article from a journal or newspaper; a short story, essay or poem; or a chart, diagram, cartoon or picture from a book, journal or newspaper.

Multiple Copies

For one-time distribution to a class, a faculty member generally may make, or have made, multiple copies if s/he:

  1. makes no more than one copy for each student;
  2. includes the copyright notice;
  3. charges no more than the cost of copying;
  4. copies only brief works or brief excerpts of longer works (“brevity”), and
  5. acts on his or her own inspiration (“spontaneity”).

The Classroom Guidelines approved by Congress are quire specific about brevity and spontaneity. The brevity test for prose limits permissible use to “a complete article, story or essay of less than 2,500 words, or an excerpt . . . of not more than 1,000 words or 10% of the work, whichever is less, but in any event a minimum of 500 words.” The Guidelines define spontaneity this way: “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.” Even under the more flexible approach endorsed by the ALA, “fair use” is quite limited. Faculty members should be “selective and sparing” in copying materials in reliance on the fair use rule and should always affix a copyright notice. Making multiple copies is not fair use if the faculty member

  1. routinely copies the same work in successive terms
  2. copies works intended to be consumed in the classroom (such as workbooks or standardized tests),
  3. makes copies in accordance with an institutional plan (rather than as a result of individual initiative), or
  4. charges more than the cost of copying.

The “fair use” of multiple copies should not have a significant effect on the potential market for the work copied. Preparation of an anthology or course-pack instead of (rather than as a supplement to) assigning a text will generally not meet the fair use test.

Library Reserve Uses

At the request of a faculty member, a university library may make and place on reserve excerpts from copyrighted works in its collection if such copying would be fair use under the rules described above. Separate rules permit libraries to:

  • make a single copy of an article or a small part of another copyrighted work for reserve purposes and,
  • copy an entire work, or a substantial part of it, if the library has determined after reasonable investigation that a copy cannot be obtained at a fair price. (Restrictions apply to these exceptions, including these: the copy must include a notice of copyright; the library must post a warning approved by the Register of Copyrights, and the copy must become the property of whoever requested it.)

Copying in Cyberspace

Works published on the internet do not lose their copyrights and are subject to the same copyright protection as those published elsewhere. It is generally agreed that providing a link to another site does not give rise to an infringement. Rules about “electronic reserves” are less clear. In 1994, in connection with the National Information Infrastructure (“NII”) Task Force, copyright holders and information consumers (academic libraries and other users) were asked to negotiate guidelines (similar to the Classroom Guidelines discussed above) for the fair use of electronic materials in a variety of nonprofit educational contexts. The effort failed to produce definitive guidelines, but the draft Fair-Use Guidelines for Electronic Reserve Systems state principles acceptable to many participants. The draft Electronic Reserve Guidelines are similar to the 1976 Classroom Guidelines in significantly limiting use of copyrighted materials without permission. Under the draft guidelines, only brief works or brief excerpts may be used without permission; the total amount of “fair use” material included in electronic reserves for a specific course must be a small proportion of the assigned reading; electronic reserves must be structured to limit access to students registered in the relevant class; and the faculty member must obtain permission from the copyright holder if the work is to be reused in a subsequent academic term by the same instructor, or if the item is standard reading for an course taught in multiple sections by many instructors. While the Electronic Reserve Guidelines do not have any binding authority, they do provide some guidance for thinking about fair use in cyberspace. If it would not be “fair use” to make individual copies of a work for each of the students in a particular class, it is surely not “fair use” to place that work on an unrestricted website where it would be available to anyone with Internet access.

Obtaining Permission to Reproduce Copyrighted Works

Permission to reproduce copyrighted materials can be obtained directly from the copyright owner, through a “clearinghouse” like the Copyright Clearance Center (www.copyright.com), or through commercial services such as FCP (a course-pack preparation service available through the WashU Bookstore). The process can be time-consuming, so it is advisable to make your requests well before the beginning of the semester in which you wish to use the materials.

In seeking permission, you should write to the person with authority to grant it, typically the publisher or author identified in the copyright notice. A request letter should identify you (including your WashU affiliation), the details of the specific item you wish to reproduce, the nature of the proposed reproduction, and your purposes. In identifying the work, you should include detailed identifying information:

  1. the author’s, editor’s or translator’s full name(s),
  2. the title, edition and volume where applicable;
  3. the copyright date, and
  4. a precise description (e.g., exact page numbers, figures and illustrations) or copy of what you wish to reproduce.

Whether you obtain permission and at what cost will often turn on how you wish to reproduce the work and for what purposes. For example, an owner willing to let you make copies without charge for 10 students in a seminar might require a royalty if you want to make copies for the 1000+ students enrolled in introductory English Composition and might well refuse to authorize placement of the work in “electronic reserves” if you fail to ensure that you will limit access to the members of a particular course. Similarly, requesting permission to distribute a work to students in a Fall 1999 course is different from seeking permission to distribute it to all of the students who enroll in that course during the next five academic years. Blanket permission is rarely available and royalties often depend on the use, so it is important to be specific about the use you wish to make.

Infringement

Because of the uncertainties regarding the scope of “fair use,” it is possible that a faculty member will unintentionally infringe upon a copyright. If the faculty member believed that copying was fair use, and had reasonable grounds for that belief, the potential liability is quite limited and the copyright owner would therefore have little incentive to resort to litigation (provided, of course, that any infringement does not continue). Where this defense does not apply, however, a copyright owner may be entitled to not only an order prohibiting continued infringement, but to either damages actually suffered or “statutory” damages up to $20,000 per infringement (up to $100,000 if the infringement was “willful”).

October 1998. (This memorandum updates and replaces a 1988 OGC memorandum.)