Guidelines On Classroom Copying

As Congress was considering the overhaul of the copyright statute in the mid 1970s, one of the main issues debated was the issue of fair use, particularly the issue of what uses of copyrighted material could be made by instructors teaching in a traditional classroom setting. Much of these debates centered on the question of photocopying and distributing of copyrighted materials to students. Congress urged the representatives of all interested parties to meet together independently in an effort to achieve an understanding as to the extend to which educational uses of copyrighted material would and should be allowed. This Congressional invitation to meet was well received and a number of meetings ensued beginning in September 1975. Various of these meetings addressed and ultimately produced guidelines for classroom use of printed material and music.

The agreement, which carries the rather long title of “Agreement on Guidelines for Classroom Copyright in Not-For-Profit Education Institutions with Respect to Books and Periodicals,” was reached by the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, the Authors League of American, Inc., and the Association of American Publishers, Inc., was incorporated into the legislative history of the Copyright Act of 1976. The agreement starts off by stating in clear and unambiguous terms that the purpose of the adopted guidelines was to state the minimum standards for educational fair use allowable under § 107 of the Act. Nevertheless, when speaking with faculty members at various institutions throughout the country, and based on personal experience, it certainly seems as if many institutions and many attorneys who provide advise, are quite risk adverse and choose to unnecessarily limit faculty to the specific safe harbor provisions contained in the agreement itself, which was certainly not intended or envisioned by the agreement. Such risk aversion is despite the fact that fair use allowable under 17 U.S.C. § 107 certainly provides greater latitude for virtually all classroom uses of copyrighted material, as is discussed below.

Nevertheless, it is important to understand the safe harbor provisions of the Guidelines, because this forms the absolute floor of protection for academic uses of copyright materials in live classrooms. The guidelines will allow faculty members to:

1. Make a single copy of such things as a chapter of a book, an article from a magazine or newspaper, a short story, or a picture, if the copy is made to further scholarly research or to be used in teaching or preparation to teach a class.
2. Make multiple copies (one for each student) if such copies are used in a classroom and provided that the copying meets the tests of brevity and spontaneity requirements, meets the cumulative effect test, and each copy includes a notice of copyright.

With respect to multiple copies, the Guidelines require that the copy meet the brevity and spontaneity requirements, which means essentially that only short works or very limited portions of works be used, and that the decision to use such work must also be made so close in time to the actual use that obtaining copyright permission is not feasible. By way of example, if a faculty member were to want to a prose work, multiple copies of a complete article, story or essay could be distributed if the article, story or essay is less than 2,500 words. If the prose work is over 2,500 words, multiple copies could be made, but could not include more than 1,000 words or 10% of the work, whichever is less, with the understanding that a minimum of 500 words can be used. Additionally, if a faculty member were to use a work one term, future uses would not be covered by the Guidelines because it would be possible to obtain permission rather that constantly relying on spontaneous use.

As can be seen from the above multiple copy example, the fair use safe harbor provided by the Guidelines is incredibly restrictive. Therefore, reliance only upon the Guidelines would lead to little to no copyrighted material actually be used in the classroom. Thankfully, the catch-all of fair use will allow significantly more latitude for classroom use of copyrighted material.

For more information on fair use generally, CLICK HERE.

AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT EDUCATIONAL INSTITUTIONS WITH RESPECT TO BOOKS AND PERIODICALS

The purpose of the following guidelines is to state the minimum and not the maximum 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 not permitted under these guidelines may be permissible under revised guidelines.

Moreover, the following statement of guidelines is not intended to limit the types of copying permitted under the standards of fair use under judicial decision and which are stated in Section 107 of the Copyright Revision Bill. There may be instances in which copying which does not fall within the guidelines stated below may nonetheless be permitted under the criteria of fair use.

GUIDELINES

I. Single Copying for Teachers

A single copy may be made of any of the following by or for a teacher at his or her individual request for his or her scholarly research or use in teaching or preparation to teach a class:

A. chapter from a book;

B. An article from a periodical or newspaper;

C. A short story, short essay or short poem, whether or not from a collective work;

D. A chart, graph, diagram, drawing, cartoon or picture from a book, periodical, or newspaper;

II. Multiple Copies for Classroom Use

Multiple copies (not to exceed in any event more than one copy per pupil in a course) may be made by or for the teacher giving the course for classroom use or discussion; provided that:

A. The copying meets the tests of brevity and spontaneity as defined below; and,

B. Meets the cumulative effect test as defined below; and,

C. Each copy includes a notice of copyright

DEFINITIONS

BREVITY

(i) 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.

(ii) 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.)

(iii) Illustration: One chart, graph, diagram, drawing, cartoon or picture per book or per periodical issue.

(iv) ‘Special’ works: Certain work 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

(i) The copying is at the instance and inspiration of the individual teacher, and

(ii) 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

(i) The copying of the material is for only one course in the school in which the copies are made.

(ii) 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.

(iii) There shall not be more than nine instances of such multiple copying for one course during one class term.

(The limitations stated in ‘ii’ and ‘iii’ above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)

III. Prohibitions as to I and II Above

Notwithstanding any of the above, the following shall be prohibited:

(A) Copying shall not be used to create or to replace or substitute for anthologies, compilations or collective works. Such replacement or substitution may occur whether copies of various works or excerpts therefrom are accumulated or reproduced and used separately.

(B) 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.

(C) Copying shall not:

(a) substitute for the purchase of books, publishers’ reprints or periodicals;

(b) be directed by higher authority;

(c) be repeated with respect to the same item by the same teacher from term to term.

(D) No charge shall be made to the student beyond the actual cost of the photocopying.

Agreed MARCH 19, 1976.

Ad Hoc Committee of Copyright Law Revision:

By SHELDON ELLIOTT STEINBACH.

Author-Publisher Group:

Authors League of America:

By IRWIN KARP, Counsel.

Association of American Publishers, Inc.’

By ALEXANDER C. HOFFMAN,

Chairman, Copyright Committee.