Fair Use Guidelines for Print Library Reserves

Fair Use Guidelines for Print Library Reserves

Title 17 of the United States Code specifies, “Copyright must be in an original work of authorship fixed in a tangible medium of expression. The law provides the owner of a work with certain exclusive rights” to that work. These exclusive rights are:

  • The right to reproduce the work
  • The right to distribute the work
  • The right to make derivative works
  • The right to publicly display the work
  • The right of public performance of the work

Copyright lasts for the life of the author plus seventy years after his or her death. For an anonymous work, copyright lasts 95 years from the date of registration or 125 years from the date of creation. Since 1988, it is not required that a work be registered in order to be protected. A child’s drawing displayed on a refrigerator or a webpage are both considered to be copyrighted. The copyright symbol need not be displayed. Registration with the Library of Congress establishes proof of ownership of the copyright.

Within current copyright law Section 17 codifies the concept of “fair use”. Fair use allows someone other than the copyright holder to copy and distribute copyrighted material under certain conditions without first gaining permission. The codification of fair use in 1976 is brief and its application can be difficult. It was followed by the Digital Millenium Copyright Act (DMCA) in 1998 that applies to the digital environment.

While the rules governing fair use ARE ambiguous, an honest, good faith attempt to comply is normally sufficient.

Fair Use: The Statute

United States Code, Title 17, Section 107

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:

Commentary: Congress explicitly favors nonprofit educational use over commercial use. Copies used in education, but sold at a profit are not favored. Beware of the “multiple copies for classroom use” phrase. This does not necessarily mean that multiple copies of copyrighted material may be freely handed out in classrooms. The other three factors need to be balanced as well. Rule of thumb for distribution of multiple copies in a classroom is to consider all four factors; if factors point to fair use, the copying and distribution is “spontaneous”, and if the same material is not copied and distributed on a regular basis semester after semester, you should be fine.

Fair use is favored when purpose is:

  • Educational nonprofit
  • News
  • Criticism
  • Parody
  • “Transformative”

Fair use is not favored if purpose is:

  • Commercial
  • For entertainment
  • For profit

2) the nature of the copyrighted work;

Commentary: Courts traditionally favor the fair use of nonfiction rather than fiction or more creative works. Factual materials such as addresses in a phone book are not protected to the extent that a novel or poem could be.

Fair us is favored if nature of the work is:

  • Nonfiction
  • Published

Fair use is not favored if the nature of the work is:

  • Unpublished – this is because creator has first right of publication
  • Creative
  • Fiction

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

Commentary: Amount is measured both quantitatively and qualitatively. No exact measures of allowable quantity exist in the law. Shorter excerpts of a work are most likely considered to be fair. A single journal article from a journal is generally O.K. Copying an entire journal without getting permission is not protected by fair use. A chapter from a book is normally fine; copying multiple chapters is problematic.

Fair use is favored if amount used is:

  • Small
  • Fair use is not favored if amount used is:
  • Large portion of the work

4) the effect of the use on the market or value

Commentary: While all four factors are considered as factors in deciding if usage is fair, this final factor is of increasing importance in resent court decisions. “If the use of a copyrighted article impacts significantly on the potential of that work to provide a monetary profit to its author, the use is infringement and not fair use. In educational settings, a professor would be permitted to make copies of a work for nonprofit use if all four fair use guidelines are followed”.

Fair use is favored if:

  • Work is lawfully acquired-if the library or professor actually owns a copy of the work, fair use is favored!
  • There is no impact on profit to copyright holder
  • There is no way to obtain permission from the copyright holder-neither inconvenience nor time constraints free a person from the obligation to obtain permission.

Fair use is not favored if:

  • Numerous copies are made – for reserve packets one copy per every 10 students enrolled is fine
  • There is repeated use-actually subscribing to a journal can mitigate in favor of repeated use
  • The profit of the copyrighted work is affected

Material placed on reserve must meet all four criteria for fair use before you submit. If you have questions that cannot be answered by the resources provided do not hesitate to contact Barbara Ryken before signing the Copyright Guidelines Acceptance Form.

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