6,505: Use of Copyrighted Materials for Educational Purposes

Last Revised: April 1999

I. THE COPYRIGHT ACT

The U.S. Copyright Act (Title 17, U.S.C. §§ 101-810) is federal legislation enacted by Congress to protect the work of authors. This copyright law defines the rights of a copyright holder and how they may be enforced against an infringer. Changing technology has led to an expanding definition of protected work which includes architectural drawings, software, sound recordings, graphics, etc. Included with the Copyright Act is the "fair use" doctrine (§ 107) which allows, under certain conditions, the photocopying of copyrighted material.

From time to time, the faculty and staff of UNR may use photocopied materials to supplement research and teaching. In many cases, photocopying can facilitate the university's mission - that is, the development and transmission of information. However, while the Copyright Act lists general factors under the heading of "fair use," it provides little in the way of specific directions for what constitutes "fair use." The law states:

"107 - Limitations on Exclusive Rights: Fair Use"

Not-withstanding the provisions of section 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 by 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 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 non-profit 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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

The purpose of the following guidelines is to provide the faculty and staff of UNR with a basic framework for deciding when the photocopying of copyrighted material is permitted under the fair use doctrine.

Please note that the copyright law applies to all forms of photocopying, whether it is undertaken at a commercial copying center such as Kinko's, at UNR's central or departmental copying facilities, or at a self-service machine. Whenever copying is performed by someone else, the requestor should be prepared to provide documentation of permission from the publisher or a statement insuring fair use.

Hopefully these guidelines will provide an appreciation of the factors which weigh in favor of and those which weigh against fair use, but faculty members must determine for themselves which works will be photocopied. UNR does not condone a policy of photocopying to avoid purchasing copyrighted works where such photocopying would constitute an infringement under the copyright law, but it does encourage faculty members to exercise good judgment in serving the best interests of students in an efficient manner.

Instructions for securing permission to photocopy copyrighted works are available in the Administration and Finance "How To" Book. It is the policy of UNR that the requestor secures such permission whenever it is legally necessary.

II. PHOTOCOPYING WHICH IS UNRESTRICTED

Published Works Which Were Never Copyrighted: Anyone may reproduce without restriction works which were never copyrighted. To determine whether an item has been copyrighted, look at the front pages of the book or periodical for a copyright notice. It consists of the copyright symbol (a letter "c" in a circle, the word "copyright" or the abbreviation "copr."), plus the year of first publication and the name of the owner of the copyright. Writings published prior to January 1, 1978, without copyright notices are not protected. "Notice" requirements for works published after that date have been relaxed somewhat with respect to position of notices and inadvertent omission of them, so there may be limited protection for works on which notices do not appear. However, in such instances copiers will not be liable for infringement who did not learn in some other way, prior to copying, that the works were actually copyrighted despite the lack of notices in them.
Published Works Whose Copyrights Have Expired: Anyone may reproduce without restriction published works whose copyrights have expired. All copyrights dated earlier than 1924 have expired. Copyrights dated 1924 or later may have expired because the initial period of copyright protection is for 28 years. We recommend that copiers either assume the protection is still in effect for copyrights dated 1924 or later, or ask the owners of the copyrights (or the U.S. Copyright Office) whether they are still subject to copyright protection. Usually publishers are either the owners or know the owners' locations. If not, owners can be located through the U.S. Copyright Office in Washington, D.C.
U.S. Government Publications: U.S. government publications may be copied freely because they are not copyrighted. This classification consists of documents prepared by an officer or employee of the U.S. government as part of that person's official duties. It does not extend to documents published by others with support of U.S. government grants or contracts. Such items may or may not be copyrighted, and teachers should first look at the front pages to see if they bear a copyright notice.
Unpublished Works: Unpublished works, such as theses or dissertations, may be protected by copyright. If such a work was created before January 1, 1978, and has not been copyrighted or published without copyright notice, the work is protected under the Copyright Act for the life of the author plus 50 years (17 USC:303), but in no case earlier than December 31, 2002. If such a work is published on or before that date, the copyright will not expire before December 31, 2027. Works created after January 1, 1978, and not published enjoy copyright protection for the life of the author plus 50 years (17 USC:302).

III. PHOTOCOPYING UNDER THE PROVISIONS OF "FAIR USE"

Under the Copyright Act, certain photocopying of copyrighted works for educational purposes may take place without the permission of the copyright owner under the doctrine of "fair use" (set forth in section I. THE COPYRIGHT ACT). This principle is subject to limitations, but neither the statute nor judicial decisions give specific practical guidelines on what photocopying falls within fair use. For faculty to achieve greater certainty of procedure and to reduce risks of infringement or allegations thereof, the following guidelines have been adopted by The Association of American Publishers, Inc., the National Associate of College Stores, Inc., and The Association of American University Presses, Inc., and were incorporated in the House of Representatives' report accompanying the Copyright Act.

It is important for those making copies to understand that fair use is a subjective decision and while strictly following these guidelines is probably the safest approach, there are many cases where fair use would permit copying and the guidelines would not.

IV. GUIDELINES

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:
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.
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:
1. the copying meets the 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
1. Brevity
  1. a. Poetry
    (1) a complete poem if less that 250 words and if printed on not more than two pages; or
    (2) from a longer poem, an excerpt of not more than 250 words.
  2. Prose
    (1) Either a complete article, story or essay of less than 2,500 words; or
    (2) 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 a. and b. above may be expanded to permit the completion of an unfinished line of a poem or of an unfinished prose paragraph.)
  3. c. Illustration
    One chart, graph, diagram, drawing, cartoon, or picture per book or per periodical issue.
  4. d. "Special" works
    Certain works in poetry, prose, or in "poetic prose" which often combine language with illustration 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 b. 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.
2. 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.
3. 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.
    
    (The limitations stated in b. and c. above shall not apply to current news periodicals and newspapers and current news sections of other periodicals.)
D. Prohibitions to A. and B. Above: Notwithstanding any of the above, the following shall be prohibited:
1. 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 therefore are accumulated or 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, test booklets and answer sheets, and like consumable material.
3. Copying shall not:
  1. substitute for the purchase of books, publishers' 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 shall be made to the student beyond the actual cost of the photocopying.

V. VIDEO RECORDING GUIDELINES FOR COPYWRITTEN BROADCASTS

The guidelines were developed to apply only to off-air recording by non-profit educational institutions.
"Broadcast programs" are television programs transmitted by television stations for reception by the general public without charge. A broadcast program may be recorded off-air simultaneously with broadcast transmission (including simultaneous cable retransmission) and retained by a non-profit educational institution for a period not to exceed the first forty-five (45) consecutive calendar days after date of recording. Upon conclusion of such retention period, all off-air recordings must be erased or destroyed immediately.
Off-air recordings may be used once by individual teachers in the course of relevant teaching activities, and repeated once only when instructional reinforcement is necessary in classrooms and similar places devoted to instruction within a single building, cluster or campus, as well as in the homes of students receiving formalized home instruction during the first ten (10) consecutive school days in the forty-five (45) calendar day retention period. "School days" are school session days -- not counting weekends, holidays, vacations, examination periods, or other scheduled interruptions -- within the forty-five (45) calendar day retention period.
Off-air recordings may be made only at the request of and used by individual teachers, and may not be regularly recorded in anticipation of requests. No broadcast program may be recorded off-air more than once at the request of the same teacher, regardless of the number of times the program may be broadcast.
A limited number of copies may be reproduced from each off-air recording to meet the legitimate needs of teachers under these guidelines. Each such additional copy shall be subject to all provisions governing the original recording.
After the first ten (10) consecutive school days, off-air recordings may be used up to the end of the forty-five (45) calendar day retention period only for teacher evaluation purposes (i.e., to determine whether or not to include the broadcast program in the teaching curriculum) and may not be used in the recording institution for student exhibition or any other non-evaluation purpose without authorization.
Off-air recordings need not be used in their entirety, but the recorded programs may not be altered from their original content. Off-air recordings may not be physically or electronically combined or merged to constitute teaching anthologies or compilations.
All copies of off-air recordings must include the copyright notice in the broadcast program as recorded.
Educational institutions are expected to establish appropriate control procedures to maintain the integrity of these guidelines.